R v Pike

Case [2021] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pike [2021] QCA 285

PARTIES:

R
v
PIKE, John David
(applicant)

FILE NO/S:

CA No 218 of 2020
DC No 1852 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 25 September 2020 (Loury QC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2021

JUDGES:

Fraser and McMurdo JJA and Bradley J

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUND FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own guilty pleas of 39 counts of sexual offences on an indictment – where the offending occurred over three decades and involved six boys aged between 11 and 16 – where the applicant was sentenced to an effective head sentence of 16 years imprisonment – where the applicant will be eligible to apply for parole after serving half of that sentence – where the guilty plea came late on the morning of the applicant’s trial – whether the sentencing judge erred in not adequately reducing the sentence to reflect the applicant’s guilty pleas

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUND FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to cumulative eight year sentences for each of two groups of offending – where the sentencing judge declined to declare the rape count a serious violent offence – where the sentencing judge declined to fix parole eligibility at one third of the head sentence – where there was insufficient evidence of the applicant’s rehabilitation relevant to risk of reoffending – whether the sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 13(1)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, applied
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v CCR[2021] QCA 119, followed
R v Coutts[2016] QCA 206, followed
R v Dib [2003] NSWCCA 117, considered
R v EP[2020] QCA 109, considered
R v F[1996] QCA 490, considered
R v GBF[2019] QCA 4, considered
R v H[1999] QCA 465, considered
R v Hutchinson[2010] QCA 22, considered
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, cited
R v Pearce[1997] QCA 303, considered
R v Ungvari[2010] QCA 134, cited
R v Wilson [1990] QSCCCA 299, considered
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited

COUNSEL:

N V Weston for the applicant
D Nardone for the respondent

SOLICITORS:

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

  1. FRASER JA:  I agree with the reasons…

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Details
AGLC
R v Pike [2021] QCA 285
Case
[2021] QCA 285
Decision Date

CaseChat Overview and Summary

In this case, the applicant appealed against the sentence imposed following his conviction on his own guilty pleas of 39 counts of sexual offences on an indictment. The offending occurred over three decades and involved six boys aged between 11 and 16. The applicant was sentenced to an effective head sentence of 16 years imprisonment and will be eligible to apply for parole after serving half of that sentence. The applicant argued that the sentencing judge erred in not adequately reducing the sentence to reflect his guilty pleas and that the sentence was manifestly excessive in all the circumstances.

The court was required to determine whether the sentencing judge erred in not adequately reducing the sentence to reflect the applicant’s guilty pleas and whether the sentence was manifestly excessive. The court found that the sentencing judge identified the practical consequence of the applicant’s guilty plea, which was that the six complainants did not have to go through the further ordeal and trauma of giving evidence about the applicant’s sexual abuse. The plea was an acknowledgement of responsibility for the offending. The court also found that the effective head sentence and the date the applicant will be eligible to apply for parole are elements that make up the single sentence. The decision not to make a serious violent offence declaration is also an element of the sentence.

The court found that the sentencing judge did not err in not adequately reducing the sentence to reflect the applicant’s guilty pleas. The court also found that the sentence was not manifestly excessive in all the circumstances. The court concluded that neither the sentence imposed, nor the express reasoning that led to its formulation, gave any cause to conclude that the learned sentencing judge erred in synthesising all the relevant elements, including the applicant’s guilty plea and the overall criminality of his offending. The court held that the proposed second ground of appeal concerning the weight given to the guilty plea was not a viable ground of appeal.

The court refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal is refused.

Background

Background to the litigation

The applicant seeks leave to appeal the sentence imposed on two proposed grounds, and has made submissions that the learned sentencing judge erred in not reducing, or not adequately reducing, the sentence to reflect the applicant’s pleas of guilty. The grounds of appeal were substituted for the former grounds, by leave granted at the hearing.Background The applicant was extradited from South Australia and charged with offending against three of the complainants on 28 March 2018. In his first interview with police, the applicant admitted knowing and spending time with the three when they were children. He denied any sexual contact with any of them before they turned 17. He made derisive remarks about their character. On 24 April 2018, when charged with offences against a fourth complainant, he denied having any sexual contact and repeated his earlier denials. In May 2018, when charged with offences against a fifth complainant, he declined to be interviewed. The matter proceeded to a committal hearing, at which the applicant’s counsel cross-examined each of the then five complainants about potential collusion between them. The investigating officer was also cross-examined. On 10 June 2019, the applicant was committed for trial. The first indictment was presented on 9 October 2019. It contained counts for offences against five of the complainants. The applicant applied to sever the counts relating to two of the complainants from the other three. This was refused. On 13 March 2020, the matter was listed for trial in the week commencing 14 September 2020. In January 2020, the applicant had been charged with offences against a sixth complainant. These offences proceeded by registry committal on 17 August 2020. They were joined to the existing indictment. The applicant applied to sever them. His application was refused on 8 September 2020. The trial was listed to commence on 15 September 2020. On that morning, the applicant confirmed he would be pleading guilty to all 39 counts on a replacement indictment, not significantly different to those on the original indictment (concerning the first five complainants) and those joined (concerning the sixth). He was arraigned and pleaded guilty to each count. At the sentencing hearing, the Crown submitted that comparable cases supported a sentence of eight to nine years imprisonment for each of two “groups” of offences; the first group being counts 1 to 28, committed before 2000; and the second group counts 29 to 39, committed in or after that year. Such sentences would attach to the most serious offences in each group, being counts 5 and 27 in the first group and count 29 in the second group. The applicant’s counsel at the sentencing hearing submitted that “a head sentence of in the order of seven years would properly reflect the criminality” of the applicant’s conduct involved in the first group and “also mark the matters in mitigation”. Defence counsel also submitted that “a sentence in the order of not more than 7 years properly reflects the criminality of the offending and is consistent with the authorities” in respect of the conduct involved in the second group.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The learned sentencing Judge identified the practical consequence of the applicant’s guilty plea. The six complainants “did not have to go through the further ordeal and trauma of giving evidence” about the applicant’s sexual abuse. The plea was an acknowledgement of responsibility for the offending.[8] It also demonstrated a willingness, at a late stage, to facilitate the course of justice, saving the public the expense and inconvenience of a trial, anticipated to last three weeks. I do not adopt the applicant’s submission that the guilty plea was “of substantial assistance in the administration of justice.”[8]Cameron v The Queen (2002) 209 CLR 339 at 343 [14] (Gaudron, Gummow and Callinan JJ).Consideration of the proposed second ground of appeal With respect, the learned sentencing judge expressed her conclusions in a conventional manner consistent with the nature of the sentencing process as one of instinctive synthesis where the sentencing judge takes account of all the relevant factors to arrive at a single sentence.[9] There were aggravating as well as mitigating factors to consider. The effective head sentence and the date the applicant will be eligible to apply for parole are elements that make up that single sentence.[10] The decision not to make a serious violent offence declaration is also an element of the sentence, because, if made, it would have operated to alter the parole eligibility date.[9]Markarian v The Queen (2005) 228 CLR 357 at [27] and [37]; Barbaro v The Queen (2014) 253 CLR 58 at [34].[10]R v MCW [2018] QCA 241 at [28] (Mullins J, as her Honour then was). Neither the sentence imposed, nor the express reasoning that led to its formulation, give any cause to conclude that the learned sentencing judge erred in synthesising all the relevant elements, including the applicant’s guilty plea and the overall criminality of his offending. In R v CCR [2021] QCA 119, this Court considered a submission that an expressly identified reduction in sentence by reference to a guilty plea was “substantially less than that which is the norm for pleas of guilty.”[11] The Court explained that such circumstances did not displace what was said by Fraser JA in R v Coutts [2016] QCA 206 at [4] about a submission that a plea of guilty had been given insufficient weight:“The weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of the sentencing discretion. This Court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence”.[12][11]R v CCR [2021] QCA 119 at [21].[12]citing: R v Major ex parte A-G (Qld) [2011] QCA 210, R v Tout [2012] QCA 296 at [7] and the decisions there cited; and R v Buckman [2016] QCA 176 at [8]. As in CCR and in Coutts, the proposed second ground of appeal concerns the weight given to the guilty plea. In the circumstances, it is not a viable ground of appeal.Manifestly excessive