R v Norgate

Case [2023] QCA 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Norgate [2023] QCA 231

PARTIES:

R
v
NORGATE, Shannon Daniel
(applicant)

FILE NO/S:

CA No 74 of 2023
DC No 669 of 2023
DC No 698 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 April 2023 (Clare SC DCJ)

DELIVERED ON:

24 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2023

JUDGES:

Morrison and Boddice JJA and Martin SJA

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal be allowed.

3.   The sentence imposed for the count on indictment 669 of 2023 be varied from three years to two years imprisonment.

4.   The orders of the sentencing judge otherwise be confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of grooming – where the applicant was sentenced to three years imprisonment, to be served cumulatively on the balances of suspended sentences activated as a consequence of the grooming offence – where the suspended sentences concerned sexual offending of the same kind – where the applicant contends the sentencing judge erred by not applying the totality principle and that the sentence imposed was manifestly excessive – where the respondent accepts the sentence was not ameliorated on account of totality, but submits there are occasions, such as this matter, where the protection of the public warrants a conclusion there be no amelioration – whether the sentencing judge had sufficient regard to the totality principle

R v Espray[2018] QCA 322, considered
R v Goodall[2013] QCA 72, considered
R v Hilsley [2020] QDCSR 878, considered
R v Mellor[2019] QCA 298, considered
R v Russell[2021] QCA 35, applied
R v Symss (2020) 3 QR 336; [2020] QCA 17, applied
R v WBK (2020) 4 QR 110; [2020] QCA 60, applied

COUNSEL:

S J Hedge for the applicant
B J Jackson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with the reasons of Boddice JA and the orders proposed by his Honour.

  2. BODDICE JA:  On 13 April 2023, the applicant pleaded guilty to one count of grooming.  He was sentenced to three years imprisonment, to be served cumulatively on the balances of suspended sentences of imprisonment, which were activated as a consequence of the applicant’s conviction of the grooming offence, committed during their operational periods.

  3. A period of 334 days in pre-sentence custody was deemed time already served under the sentence for grooming.  A parole eligibility date was fixed at 12 November 2023.

  4. The applicant seeks leave to appeal his sentence.  Should leave be granted, two grounds are relied upon.  First, that the sentencing judge erred by not applying the totality principle.  Second, that the sentence imposed was manifestly excessive.

    Background

  5. The applicant was born in…

Continue reading R v Norgate

Sign in free to access the full text

Details
AGLC
R v Norgate [2023] QCA 231
Case
[2023] QCA 231
Decision Date

CaseChat Overview and Summary

In R v Norgate, the applicant appeals against his sentence, contending the sentencing judge erred by not applying the totality principle and that the sentence imposed was manifestly excessive. The applicant pleaded guilty to one count of grooming, and was sentenced to three years imprisonment, to be served cumulatively on the balances of suspended sentences activated as a consequence of the grooming offence. The suspended sentences concerned sexual offending of the same kind. The applicant submits the sentencing judge erred by not applying the totality principle and that the sentence imposed was manifestly excessive. The respondent accepts the sentence was not ameliorated on account of totality, but submits there are occasions, such as this matter, where the protection of the public warrants a conclusion there be no amelioration.

The court was required to determine whether the sentencing judge had sufficient regard to the totality principle and whether the sentence imposed was manifestly excessive. The court considered that the applicant's behaviour involved a persistent example of grooming, undertaken but weeks after his release from custody, but there were no sexual acts undertaken by the 12-year-old boy. The court also considered that it was a significant aggravating feature that the applicant’s offending was in breach of court orders. The court further considered that, whilst he has significant intellectual and mental disabilities, they are not mitigating factors as those very conditions increase his risk to children.

The court found that there was a failure to have regard to totality in imposing the sentence of three years for grooming, to be served cumulatively on the activated suspended sentences. The court found that this conclusion rendered it unnecessary to consider whether the sentence imposed was manifestly excessive, in all the circumstances. The court re-exercised the sentencing discretion by varying the applicant’s sentence of three years imprisonment to two years imprisonment. The court confirmed each of the other sentences imposed by the sentencing judge. The court ordered leave to appeal be granted, the appeal be allowed, the sentence imposed for the count on indictment 669 of 2023 be varied from three years to two years imprisonment, and the orders of the sentencing judge otherwise be confirmed.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The sentence imposed for the count on indictment 669 of 2023 be varied from three years to two years imprisonment.

4. The orders of the sentencing judge otherwise be confirmed.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. Should leave be granted, two grounds are relied upon. First, that the sentencing judge erred by not applying the totality principle. Second, that the sentence imposed was manifestly excessive.Background The applicant was born in 1997. He was aged 23 at the time of the commission of the offence and aged 25 at sentence. The applicant had a relevant criminal history. It included previous convictions for trespass, wearing uniforms or colourable imitations of uniforms of officers, possession of weapons, breach of bail offences, sexual offences against children and using a carriage service to menace, harass or cause offence. The sexual offences were the subject of the suspended sentences activated on his conviction and sentence for the grooming offence. The applicant had a significantly disadvantaged background, growing up in a family where he was exposed to domestic violence. The applicant had significant intellectual disabilities, including childhood autism and mild mental retardation. His history included poor emotional regulation and numeracy and literacy skills that were barely functioning. He required special education at school. The applicant also suffers from epilepsy and has a past psychiatric history, including treatment for having heard voices. Drugs and alcohol have also been a feature in his life. He has a history of expressing violent attitudes and fantasies to those who have assessed him in the course of mental assessments. The applicant requires NDIS assistance in terms of psychology, education, and speech, as well as stable and supportive accommodation. At the time of the commission of the grooming offence, the applicant was, in addition to being subject to the operational period for the suspended sentences, on a good behaviour bond and subject to a 12-month probation order, imposed on 4 September 2020 for offences including failing to comply with reporting conditions associated with those prior sexual offences.Suspended sentences The suspended sentences were imposed on 26 March 2020 after the applicant pleaded guilty to a variety of offending, including one count of taking a child under 16 for immoral purposes, under 12; two counts of attempted indecent treatment of a child under 16, under 12; one count of indecent treatment of a child under 16, under 12; three charges of trespass; and one charge of unlawful possession of weapons. The sexual offences were committed when the applicant was 21 years of age. The complainants were three children. All of the offending occurred in the context of their attendance at school. Each trespass offence was relevant to that sexual offending. The first complainant, a 10-year-old child, was accosted by the applicant whilst walking to school. The applicant encouraged the child to enter a toilet block, near some shops. After doing so, he locked the child in the cubicle. The applicant then knelt down and directed the child to pull his pants down. The child resisted and although the applicant encouraged him to come back, the child refused to do so.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Further, R v Hilsley[5] involved two counts of grooming, one for a period extending over 11 months, involving persistent attempts to prostitute two young girls, by an offender who had been previously sentenced to six years imprisonment for prostituting young girls. Hilsley received a head sentence of three years imprisonment on the grooming counts and lesser concurrent sentences for two counts of indecent treatment of a child.[5][2020] QDCSR 878.Conclusion The applicant has established error. There was a failure to have regard to totality in imposing the sentence of three years for grooming, to be served cumulatively on the activated suspended sentences. This conclusion renders it unnecessary to consider whether the sentence imposed was manifestly excessive, in all the circumstances.Re-sentence In re-exercising the sentencing discretion, it is relevant to have regard to the fact that whilst the applicant’s behaviour involved a persistent example of grooming, undertaken but weeks after his release from custody, there were no sexual acts undertaken by the 12-year-old boy. As against that, it is a significant aggravating feature that the applicant’s offending was in breach of court orders. Further, whilst he has significant intellectual and mental disabilities, they are not mitigating factors as those very conditions increase his risk to children. Allowing for the applicant’s plea of guilty and for the fact that the sentence for the grooming offence is properly to be ordered to be served cumulatively on the balance of the suspended sentences activated in full, I would re-exercise the sentencing discretion by varying the applicant’s sentence of three years imprisonment to two years imprisonment. No error is shown in any of the other sentences imposed by the sentencing judge. I would confirm each of those sentences. There is also no error shown in the exercise of the sentencing judge’s discretion in respect of the declaration of pre-sentence custody and in the affixing of the parole eligibility date. I would confirm each.Orders I would order:1.Leave to appeal be granted.2.The appeal be allowed.3.The sentence imposed for the count on indictment 669 of 2023 be varied from three years to two years imprisonment.4.The orders of the sentencing judge otherwise be confirmed. MARTIN SJA: I agree with the reasons of Boddice JA and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.