R v McGrath

Case [2005] QCA 463


SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrath [2005] QCA 463

PARTIES:

R
v
McGRATH, Christopher Arron
(applicant/appellant)

FILE NO/S:

CA No 239 of 2005
DC No 2572 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2005

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal against the sentences is granted
2. On counts one and two, the appeal is allowed to the extent that the sentence of four months imprisonment is suspended after six days, with an operational period of 12 months
3. It is declared that the six days in custody from 16 September 2005 to 21 September 2005, both inclusive, be treated as time already served
4. On counts three to five, the appeal is allowed; the sentence in each instance of four months imprisonment is set aside and in lieu thereof it is ordered that the applicant be placed on probation for a period of 12 months, with a special condition that he submit to such psychiatric or psychological treatment as may be directed by a Community Corrections Officer

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where appellant convicted of two offences of using the internet with intent to procure a child under 16 to engage in a sexual act and three offences of using the internet with intent to expose a child under 16 to indecent matter – where appellant sentenced to four months imprisonment – where offences involved the appellant making contact with two internet users whom he believed to be 13 year old girls – where appellant was actually communicating with police officers – where no positive arrangement was made to meet up with either person that the appellant was in contact with – where appellant has no prior criminal history – whether sentencing judge gave undue weight to deterrence – whether the sentence imposed was manifestly excessive

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – GENERALLY – where s 9(5) of Penalties and Sentences Act 1992 (Qld) precludes the application of the principles in s 9(2)(a) in cases involving an “offence of a sexual nature committed in relation to a child under 16 years” – where appellant argued that the offences were not committed in relation to a child under 16 years because the recipients of the communication were in fact adults – whether the principles in s 9(2) apply in sentencing offenders convicted under s 218A of Criminal Code (1899) Qld, in particular the principle in s 9(2)(a) that imprisonment should be imposed as a last resort – alternatively, whether the…

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Details
AGLC
R v McGrath [2005] QCA 463
Case
[2005] QCA 463
Decision Date

CaseChat Overview and Summary

The case of R v McGrath involved the appellant, who was convicted of using the internet with intent to procure a child under 16 to engage in a sexual act on two occasions, as well as three instances of using the internet with intent to expose a child under 16 to an indecent matter. The appellant was sentenced to four months imprisonment by the sentencing judge. However, it was later revealed that the appellant had been communicating with police officers rather than actual children, and no physical meeting had been arranged. The appellant, who had no prior criminal history, appealed against his sentence on the grounds that the sentencing judge had given undue weight to deterrence and that the sentence imposed was manifestly excessive.

The legal issues before the court were whether the sentencing judge appropriately considered the principles outlined in the Penalties and Sentences Act 1992 (Qld), particularly section 9(2)(a), which states that imprisonment should be imposed as a last resort. Additionally, the court had to determine whether the offences under section 218A of the Criminal Code (1899) Qld fell under the exceptions outlined in section 9(5) of the Penalties and Sentences Act, which precluded the application of section 9(2)(a) in cases involving an "offence of a sexual nature committed in relation to a child under 16 years." The appellant argued that the offences were not committed in relation to a child under 16 years because the recipients of the communication were in fact adults.

In delivering the judgment, the court considered the principles set out in section 9 of the Penalties and Sentences Act. The court found that while the appellant's actions were reprehensible, the sentencing judge had given undue weight to the deterrent effect of imprisonment. The court noted that the appellant had no prior criminal history and that the offences were not committed in relation to a child under 16 years, as the recipients of the communication were actually police officers. Consequently, the court concluded that the principles in section 9(2) did apply in sentencing offenders convicted under section 218A of the Criminal Code (1899) Qld. As a result, the appeal against the sentence was allowed, and the sentence was modified to a suspended sentence with specific conditions.

Orders

Orders of the court

1. Leave to appeal against the sentences is granted

2. On counts one and two, the appeal is allowed to the extent that the sentence of four months imprisonment is suspended after six days, with an operational period of 12 months

3. It is declared that the six days in custody from 16 September 2005 to 21 September 2005, both inclusive, be treated as time already served

4. On counts three to five, the appeal is allowed; the sentence in each instance of four months imprisonment is set aside and in lieu thereof it is ordered that the applicant be placed on probation for a period of 12 months, with a special condition that he submit to such psychiatric or psychological treatment as may be directed by a Community Corrections Officer

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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