R v Pearce - [1997] QCA 303

COURT OF APPEAL

[1997] QCA 303

PINCUS JA
SHEPHERDSON J
WHITE J

CA No 212 of 1997

THE QUEEN

JESSE SPENCER PEARCE Applicant

BRISBANE

..DATE 08/08/97

JUDGMENT

WHITE J: The applicant for leave to appeal against sentence was convicted on his pleas of guilty in respect of six charges on a Commonwealth indictment and 32 counts on a State indictment on 1 May 1997.

He was charged on the Commonwealth indictment pursuant to section 50BC of the Crimes Act, 1914 with two acts of indecency with a person who was under the age of 16 years between 1994 and 1995 in Thailand and four charges of possession of child abuse photos, two depicting an Asian girl and two an Asian boy, contrary to section 14 of the Commonwealth Classification of Publications Act 1991.

The State indictment covered various dates between 1969 and 1990. It concerned four counts of indecent treatment of a boy under 14 years, two counts of indecent treatment of a girl under 14, 10 counts of indecent treatment of a boy under 16 years, nine counts of committing an unnatural offence, two counts of permitting an unnatural offence, one count of attempting to commit an unnatural offence, two counts of administering a stupefying drug and two counts of indecent dealing with a child under the age of 16 years.

The learned sentencing Judge imposed sentences of eight years in respect of the indecent acts which occurred outside Australia and nine months each in respect of the possession of child abuse photographs and set a non-parole period of four years.

In respect of the offences on the State indictment, he imposed sentences of nine years each on each of the 12 unnatural offence charges, a sentence of eight years for attempted unlawful carnal knowledge and four years for each of the remainder of the matters on the indictment. All of the sentences were to be served concurrently. No recommendation as to parole was made in respect of the sentences imposed on the State indictment. A declaration as to 339 days in presentence custody was made.

The applicant was born on 20 September 1920 and was aged 76 years at the time of sentence. The applicant has one previous conviction, namely an aggravated assault on a male child under the age of 14 which occurred on 8 August 1981 for which he was fined $150. The offence occurred in the course of a great many of the offences which were before the Court on the State indictment.

These offences came to light when the applicant was in Byron Bay in May 1996. He approached a 14 year old boy in the street and asked him if there were any gay bars in town and told the boy that he was a "good age to get into that sort of stuff". The boy's father arrived and a complaint was made subsequently to New South Wales police who located the applicant and warned him about his behaviour. The police officer…

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 Pearce

Details

AGLC: R v Pearce [1997] QCA 303
Case: [1997] QCA 303
Decision Date: 8 August 1997

CaseChat Overview and Summary

Jesse Spencer Pearce, a 76-year-old man born on 20 September 1920, appealed against his sentence following his conviction on multiple charges related to child abuse. The charges included indecent acts with minors under the age of 16 years, possession of child abuse photos, and various other offenses such as indecent treatment, unnatural offences, and administering stupefying drugs. The crimes spanned several years from 1969 to 1995 and occurred in Australia and Thailand. Pearce was found in possession of child abuse photographs in Byron Bay, leading to the discovery of his extensive criminal history. The appeal focused on the contention that the sentence was manifestly excessive, considering his age and health conditions, including HIV and tinnitus.

The Court of Appeal had to determine whether the sentencing judge's imposition of concurrent sentences for the multiple offenses was appropriate, considering Pearce's age, health, and the severity of the crimes. The court also needed to assess if the sentence was excessive in light of the mitigating factors presented by the defense, such as Pearce's cooperation with the police and his poor health.

The Court of Appeal found that the sentences imposed were within the sound discretion of the sentencing judge. The severity and frequency of the offenses, coupled with the abuse of trust and the significant impact on the victims, justified the concurrent sentencing approach. The judges acknowledged Pearce's age and health but reasoned that the question of early parole or specialized medical treatment was more appropriately addressed by the Community Corrections Board. The Court concluded that there was no basis to interfere with the sentencing judge's decision. The application for leave to appeal was refused.

Orders