R v Nash - [2001] QCA 543

[2001] QCA 543

COURT OF APPEAL

de JERSEY CJ
McMURDO P
WILLIAMS JA

CA No 258 of 2001

THE QUEEN

WAYNE MICHAEL NASH Applicant

BRISBANE

..DATE 28/11/2001

JUDGMENT

WILLIAMS JA: The applicant pleaded guilty in the District Court at Townsville to four counts of indecent dealing with a boy under 16 years of age. On the first count he was sentenced to imprisonment for a period of six years and on each of the other counts to imprisonment for a period of five years. Those sentences were ordered to be served concurrently. A declaration was made that he had spent 294 days in presentence custody. An order was also made requiring him to report on his release from prison. He seeks leave to appeal against the sentences imposed on the ground that they are manifestly excessive.

It was conceded by counsel for the Crown that the sentences imposed could not be justified. It was conceded that there had been an error in the exercise of the sentencing discretion. The question remains as to the appropriate sentence to be imposed with respect to the offences in question.

The offence which was the subject of the first count on the indictment involved the applicant touching a 15 year old boy on the penis. The boy had been known to the applicant for some time and apparently had hurt his back whilst riding a pushbike. That resulted in the applicant initially massaging his back but, in the course of that activity, he fondled the penis. The boy continued to see the applicant for some time thereafter. He expressly declined to put in a victim impact statement.

The other three counts all occurred on 5 November 2000 and in what was described by both counsel and the sentencing Judge as a bizarre set of circumstances. Before dealing with the circumstances, it is appropriate to record at this stage that the applicant has a history of offending by committing acts of indecency with young boys. He was first convicted for such an offence on 4 June 1970 in the Sydney Court of Sessions and his last, and eleventh conviction, was in the Cooma District Court on 5 March 1992. Some of those 11 offences involved the offence of sodomy and, indeed, the last term of imprisonment that the applicant served was for a period of approximately eight years.

So he was a person with a predisposition to committing offences of this type. It should also be said that at the time of the offences he was aged 59 years. Apparently the complainants in all counts were what was described in the material before the sentencing Judge as street kids. The group apparently frequented the residence of a man named Williams. It appears that Williams, and this group of young boys, decided upon a plan to encourage the applicant to indecently touch one or more of them so that the police could be called and the applicant charged.

With that in mind, some photographs were…

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 Nash

Details

AGLC: R v Nash [2001] QCA 543
Case: [2001] QCA 543
Decision Date: 28/11/2001

CaseChat Overview and Summary

In the case of R v Nash, the applicant, Wayne Michael Nash, was convicted and sentenced in the District Court at Townsville for four counts of indecent dealing with a boy under 16 years of age. Nash pleaded guilty and was sentenced to six years of imprisonment for the first count and five years for each of the other counts, with all sentences to run concurrently. Nash sought leave to appeal against the sentences, arguing they were manifestly excessive. The Crown conceded that the sentences could not be justified and acknowledged an error in the exercise of the sentencing discretion.

The legal issues before the court involved determining whether the sentences imposed were manifestly excessive and, if so, what the appropriate sentence should be for the offences committed. The court considered the nature of the offences, the history of Nash's offending, and the unusual circumstances under which the offences occurred. The court found that the sentencing judge had placed too much emphasis on Nash's criminal history and not enough on the gravity of the particular offences.

The Court of Appeal concluded that the sentences imposed were indeed excessive and set aside the original sentences. The court imposed a sentence of three years' imprisonment for each of the four offences, to be served concurrently. The court also noted the importance of prosecutors providing sentencing judges with relevant previous cases and suggested sentencing ranges to avoid such errors in the future. The Chief Justice agreed with the orders and reasons provided by Justice Williams, and the President concurred with both.

Orders