R v McCoy - [2020] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCoy [2020] QCA 59

PARTIES:

R
v
McCOY, Christopher John
(applicant)

FILE NO/S:

CA No 338 of 2018
DC No 1157 of 2018
DC No 1158 of 2018
DC No 1159 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 November 2018 (Rafter SC DCJ)

DELIVERED ON:

3 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDER:

The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of two counts of maintaining a sexual relationship with a child, eight counts of indecent treatment of a child under 16 under 12 and nine counts of rape – where the applicant was convicted on his own pleas of guilty to one count of possessing child exploitation material, one count of using a carriage service to access child pornography material, one count of using a carriage service to cause child pornography material to be transmitted to himself and five counts of failing to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the applicant’s convictions breached suspended sentences and probation orders – where the applicant was sentenced to 10 years’ imprisonment for each maintaining count and lesser periods of imprisonment for the remaining counts – where the applicant was declared to have been convicted of serious violent offences – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentences were manifestly excessive – where each maintaining count involved sexual conduct against separate male complainants aged seven to eight and eight to nine years at the time of the offences – where the applicant was aged 19 to 20 years at the time of the offences – where the applicant had extensive and relevant past criminal history including offences committed both before and subsequent to the sexual conduct the subject of the maintaining counts – where the pre-sentence report, including a psychiatric assessment, recorded a continual refusal by the applicant to accept responsibility for the offending – where the sentencing Judge accepted that principles of totality were applicable – where the sentencing Judge had regard to a number of mitigating factors, including the applicant’s age, prospects of rehabilitation and pleas of guilty – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentencing judge erred in failing to sufficiently take into account the applicant’s youth, prospects of rehabilitation and mental illness – where the psychiatrist…

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 McCoy

Details

AGLC: R v McCoy [2020] QCA 59
Case: [2020] QCA 59
Decision Date: 3 April 2020

CaseChat Overview and Summary

The case of R v McCoy involves the applicant seeking leave to appeal against the sentences imposed for maintaining a sexual relationship with a child. The applicant contends that the sentences of 10 years imprisonment for each count of maintaining a sexual relationship with a child are manifestly excessive and that the sentencing judge failed to sufficiently consider his youth, prospects of rehabilitation, and mental illness. The applicant also argues that the sentencing judge erred in the approach taken in relation to his mental illnesses. The applicant had previously been convicted of various offences, including sexual offences against children, and had been sentenced to various terms of imprisonment and probation. The sentencing judge had regard to a number of mitigating factors, including the applicant's age, prospects of rehabilitation, and pleas of guilty.

The legal issues before the court were whether the sentence imposed was manifestly excessive, whether the sentencing judge erred in failing to sufficiently take into account the applicant's youth, prospects of rehabilitation, and mental illness, and whether the sentencing judge erred in the proper approach to be taken in relation to the applicant's mental illnesses at the time of the sentence. The court considered whether the sentence imposed for the offences of maintaining a sexual relationship with a child fell within a sound and proper exercise of the sentencing discretion. The court found that the sentencing judge took into account the applicant's youth, prospects of rehabilitation, and mental illnesses in imposing the sentences and that there was no error of principle. The sentences were not plainly unreasonable or unjust and were not manifestly excessive.

The court found that the sentencing judge had properly considered the applicant's mental health disorders as relevant factors in sentencing. The court held that the sentencing judge recognised that as the applicant was a youthful offender, rehabilitation was a relevant consideration. The court also found that the sentences imposed for the offences of maintaining a sexual relationship with a child fell within a sound and proper exercise of the sentencing discretion. The court concluded that the sentences were neither plainly unreasonable nor unjust and that the applicant's mental health disorders had been properly considered in sentencing. The court held that the sentences were not manifestly excessive and represented a proper reflection of the applicant's overall criminality.

The court ordered that the application for leave to appeal against sentence be refused. The court found that the applicant's appeal against sentence was not well-founded and that the sentences imposed were appropriate in the circumstances. The court concluded that the sentencing judge had properly considered the relevant factors in sentencing and that the sentences imposed were not manifestly excessive or unjust.

Orders

Orders of the court

The application for leave to appeal against sentence be refused.

Background

Background to the litigation

The applicant seeks leave to appeal the sentences of 10 years imprisonment for each maintaining count. The applicant relies on three grounds of appeal, should leave be granted to appeal those sentences:1.The sentence was manifestly excessive.2.The learned sentencing judge erred in failing to sufficiently take into account the applicant’s youth, prospects of rehabilitation and mental illness.3.The learned sentencing judge erred in the proper approach to be taken, in relation to the applicant’s mental illnesses at the time of the sentence.Background Each maintaining count involved sexual conduct against separate male complainants, between 31 December 2011 and 27 January 2013. The complainants were brothers. The younger complainant was aged seven to eight years at the time of the offences. The older male complainant was aged eight to nine years. In total, there were 19 sexual offences committed against those two brothers. The nine counts of rape and eight counts of indecent treatment of a child under 16 under 12 involved offences which were particulars of the maintaining counts. The applicant, who was born on 30 January 1992, was aged 19 to 20 years at the time of the offending and 26 years at sentence. He had an extensive and relevant past criminal history. It contained offences committed both before and subsequent to the sexual conduct the subject of the maintaining counts. Relevantly for the purposes of his sentence for the maintaining counts, the applicant had been convicted of sexual offending on 13 January 2014 and 6 November 2015. On 13 January 2014, the applicant pleaded guilty to seven counts of indecent treatment of a child under 16 under 12 and under care and one count of rape. The complainant was the younger male complainant the subject of the maintaining count. All of those offences had been committed on 27 January 2013 when the complainant was aged eight years. The offending involved fondling, masturbation and oral sex. The applicant filmed that sexual contact on his telephone. The applicant was sentenced, in respect of the offence of rape, to three years imprisonment, suspended after nine months, for an operational period of five years. In respect of the remaining counts, he received sentences of nine months’ imprisonment and three years’ probation, with a special condition that he undergo medical, psychological and psychiatric examination and treatment. An appeal by the Attorney-General against sentence was dismissed on 24 June 2014. On 21 October 2015, the applicant pleaded guilty to one count of indecently dealing with a child under the age of 16 years, under 12, under care and seven counts of indecent treatment of a child under 16, all committed in 2010. The first offence involved a male complainant aged 10 to 11 years who was being supervised by the applicant at a sleep over, as a friend of the applicant’s brother. The applicant rubbed his penis in the area of that male complainant’s buttocks. The remaining counts were committed against a different male complainant, again in 2010, at the applicant’s residence. That complainant was aged 13 to 14 years. The offending conduct included fondling, oral sex and touching the complainant’s anal area whilst the applicant masturbated himself. There was then mutual masturbation to ejaculation. The applicant was sentenced to six months imprisonment and three years’ probation in respect of the single offence involving the complainant aged 10 to 11 years, and 18 months imprisonment, suspended after six months, for an operational period of five years, for the offence involving the other complainant.Offences

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s mental health disorders were relevant factors on sentencing,[5] and the sentencing judge had regard to those conditions, properly, in the applicant’s circumstances, regarding the existence of those disorders including paedophiliac disorder as an aggravating factor. The sentencing judge still recognised that as the applicant was a youthful offender, rehabilitation was a relevant consideration.[5]R v CBQ [2016] QCA 125.Conclusion The sentence imposed for the offences of maintaining a sexual relationship with a child fell within a sound and proper exercise of the sentencing discretion. The sentencing judge took into account the applicant’s youth, prospects of rehabilitation and mental illnesses, in imposing those sentences. There was no error of principle. The sentences were neither plainly unreasonable nor unjust. The sentences were not manifestly excessive. The sentences of 10 years’ imprisonment had regard to the previous sentences and represented a proper reflection of the applicant’s overall criminality.Orders I would order that the application for leave to appeal against sentence be refused.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v McCoy [2020] QCA 59
PARTIES:	R v McCOY, Christopher John (applicant)
FILE NO/S:	CA No 338 of 2018 DC No 1157 of 2018 DC No 1158 of 2018 DC No 1159 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 19 November 2018 (Rafter SC DCJ)
DELIVERED ON:	3 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2019
JUDGES:	Sofronoff P and Fraser JA and Boddice J
ORDER:	The application for leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of two counts of maintaining a sexual relationship with a child, eight counts of indecent treatment of a child under 16 under 12 and nine counts of rape – where the applicant was convicted on his own pleas of guilty to one count of possessing child exploitation material, one count of using a carriage service to access child pornography material, one count of using a carriage service to cause child pornography material to be transmitted to himself and five counts of failing to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the applicant’s convictions breached suspended sentences and probation orders – where the applicant was sentenced to 10 years’ imprisonment for each maintaining count and lesser periods of imprisonment for the remaining counts – where the applicant was declared to have been convicted of serious violent offences – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentences were manifestly excessive – where each maintaining count involved sexual conduct against separate male complainants aged seven to eight and eight to nine years at the time of the offences – where the applicant was aged 19 to 20 years at the time of the offences – where the applicant had extensive and relevant past criminal history including offences committed both before and subsequent to the sexual conduct the subject of the maintaining counts – where the pre-sentence report, including a psychiatric assessment, recorded a continual refusal by the applicant to accept responsibility for the offending – where the sentencing Judge accepted that principles of totality were applicable – where the sentencing Judge had regard to a number of mitigating factors, including the applicant’s age, prospects of rehabilitation and pleas of guilty – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentencing judge erred in failing to sufficiently take into account the applicant’s youth, prospects of rehabilitation and mental illness – where the psychiatrist…