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 2023DIVISION:
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, appliedCOUNSEL:
S J Hedge for the applicant
B J Jackson for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I agree with the reasons of Boddice JA and the orders proposed by his Honour.
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.
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.
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…
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- R v Norgate [2023] QCA 231
- Case
- [2023] QCA 231
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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