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R v Sparrow

R v Sparrow

Case [2015] QCA 271 11 December 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Sparrow [2015] QCA 271

PARTIES:

R
v
SPARROW, Ben
(applicant)

FILE NO/S:

CA No 23 of 2015
DC No 1515 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Unreported, 9 February 2015

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2015

JUDGES:

Gotterson and Morrison JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to a number of counts including two counts of using a carriage service to procure a person under 16 years of age to engage in sexual activity; five counts of indecent treatment of a child under 16 years; two counts of sodomy of a person under 18 years; and one count of unlawful carnal knowledge of a child under 16 years – where the applicant was sentenced to eight years’ imprisonment, with a non-parole period of four years and six months in respect of the two counts relating to using a carriage service to procure a person under 16 years of age to engage in sexual activity and three years in respect of the remaining eight counts, to be served concurrently – where the applicant was 35 years old and the complainant was 12 years old – where the applicant communicated with the complainant via text message, Facebook, and telephone over three months – where the applicant told the complainant in explicit language of his sexual interest in her – where the applicant met with the complainant in a motel and he performed various sexual acts on her and asked the complainant to perform sexual acts on him – where the applicant and the complainant continued to exchange numerous sexually explicit texts – where the complainant’s mother discovered the Facebook exchanges between the applicant and the complainant – where the police were involved and the applicant was arrested – whether the sentence was manifestly excessive

Criminal Code (Cth), s 474.26(1)
Probation and Parole Act 1983 (NSW)

Cooper v The Queen [2012] VSCA 32, considered
Director of Public Prosecutions v Chatterton [2014] VSCA 1, considered
Director of Public Prosecutions (Cth) v Hizhnikov (2008) 192 A Crim R 69; [2008] VSCA 269, considered
Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, considered
Minehan v The Queen (2010) 201 A Crim R 243; [2010] NSWCCA 140, considered
R v Asplund(2010) 216 A Crim R 48; [2010] NSWCCA 316, considered
R v Engeln[2014] QCA 313, considered
R v Fuller [2010] NSWCCA 192, considered
R v Gajjar (2008) 192 A Crim R 76; [2008] VSCA 268, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

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 Sparrow

Details

AGLC: R v Sparrow [2015] QCA 271
Case: [2015] QCA 271
Decision Date: 11 December 2015

CaseChat Overview and Summary

In the matter of R v Sparrow, the applicant appealed against the sentence imposed by the lower court, arguing that it was manifestly excessive. The applicant had pleaded guilty to a series of serious sexual offences involving a 12-year-old child, including procuring the child to engage in sexual activity via a carriage service, indecent treatment, sodomy, and unlawful carnal knowledge. The applicant was sentenced to a total of eight years' imprisonment, with a non-parole period of four years and six months for two counts, and three years for the remaining counts, to be served concurrently.

The legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offences and the applicant's personal circumstances. The court considered the severity and frequency of the offences, the age of the victim, the explicit nature of the communications between the applicant and the victim, and the applicant's age at the time of sentencing. The court also considered the principle of proportionality and whether the sentence imposed was commensurate with the seriousness of the offences.

After careful consideration, the court found that the sentence was not manifestly excessive. The court noted the gravity of the offences and the need to protect the community and deter similar conduct. The court also noted the applicant's guilty plea and the fact that he had no prior criminal record. The court concluded that the sentence imposed was appropriate and proportionate to the seriousness of the offences. The appeal against sentence was therefore dismissed.

The court's final order was that the application for appeal against sentence was refused.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground has been dealt with above in paragraphs [54] to [58] above.Conclusion For the reasons given above I would refuse the application. DOUGLAS J: I also agree with the reasons of Morrison JA and the order proposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Sparrow [2015] QCA 271

Most Recent Citation

R v CBO [2016] QCA 24

Cases citing this decision · 1 of 1 shown

R v CBO
[2016] QCA 24

…175, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited R v Sparrow [2015] QCA 271, considered Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited COUNSEL: P Davis QC for the applicant S Farnden for the respondent SOLICITORS: Cooper Maloy Legal for the applicant Director of Public Prosecu…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Engeln
[2014] QCA 313 Para 2

…to Sparrow. [31]Outline paragraph 13.2.4. [32][2014] VSCA 1. ( Chatterton ) [33][2012] VSCA 32. ( Cooper ) [34][2010] NSWCCA 192. ( Fuller ) [35][2014] QCA 313. ( Engeln )…
DPP v Chatterton
[2014] VSCA 1 Para 2

…involve offences against s 474.26(1) of the Criminal Code (Cth), the same section as that applying to Sparrow. [31]Outline paragraph 13.2.4. [32][2014] VSCA 1. ( Chatterton ) [33][2012] VSCA 32. ( Cooper ) [34][2010] NSWCCA 192. ( Fuller ) [35][2014] QCA 313. ( Engeln )…
R v Nahlous
[2013] NSWCCA 90 Para 20

…Tector ) [41][2008] VSCA 269. ( Hizhnikov ) [42][2008] VSCA 268. ( Gajjar ) [43][2010] NSWCCA 293. ( Rampley ) [44][2010] NSWCCA 140. ( Minehan ) [45][2013] NSWCCA 90. ( Nahlous )…
Cooper v The Queen
[2012] VSCA 32 Para 2

…(1) of the Criminal Code (Cth), the same section as that applying to Sparrow. [31]Outline paragraph 13.2.4. [32][2014] VSCA 1. ( Chatterton ) [33][2012] VSCA 32. ( Cooper ) [34][2010] NSWCCA 192. ( Fuller ) [35][2014] QCA 313. ( Engeln )…
R v Asplund
[2010] NSWCCA 316 Para 8

…ntence to be imposed; and 4.failing to give reasons explaining why the parole release date was postponed until after the midpoint of the sentence. [1][2010] NSWCCA 316. ( Asplund ) Nature of the offending…
Rampley v R
[2010] NSWCCA 293 Para 20

…ous .[45] [39](2007) NSWCCA 157. ( Poynder ) [40][2008] NSWCCA 151. ( Tector ) [41][2008] VSCA 269. ( Hizhnikov ) [42][2008] VSCA 268. ( Gajjar ) [43][2010] NSWCCA 293. ( Rampley ) [44][2010] NSWCCA 140. ( Minehan ) [45][2013] NSWCCA 90. ( Nahlous )…
R v Fuller
[2010] NSWCCA 192 Para 2

…the same section as that applying to Sparrow. [31]Outline paragraph 13.2.4. [32][2014] VSCA 1. ( Chatterton ) [33][2012] VSCA 32. ( Cooper ) [34][2010] NSWCCA 192. ( Fuller ) [35][2014] QCA 313. ( Engeln )…
Minehan v R
[2010] NSWCCA 140

…8) 192 A Crim R 69; [2008] VSCA 269, considered Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, considered Minehan v The Queen (2010) 201 A Crim R 243; [2010] NSWCCA 140, considered R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, considered R v Engeln [2014] QCA 313, considered R v Fuller [2010] NSWCCA 192, c…
DPP (Cth) v Hizhnikov
[2008] VSCA 269 Para 20

…2] Rampley v The Queen ,[43] Minehan v The Queen ,[44] and R v Nahlous .[45] [39](2007) NSWCCA 157. ( Poynder ) [40][2008] NSWCCA 151. ( Tector ) [41][2008] VSCA 269. ( Hizhnikov ) [42][2008] VSCA 268. ( Gajjar ) [43][2010] NSWCCA 293. ( Rampley ) [44][2010] NSWCCA 140. ( Minehan ) [45][2013] NSWCCA 90. ( Nahlous…
R v Gajjar
[2008] VSCA 268 Para 20

…n v The Queen ,[44] and R v Nahlous .[45] [39](2007) NSWCCA 157. ( Poynder ) [40][2008] NSWCCA 151. ( Tector ) [41][2008] VSCA 269. ( Hizhnikov ) [42][2008] VSCA 268. ( Gajjar ) [43][2010] NSWCCA 293. ( Rampley ) [44][2010] NSWCCA 140. ( Minehan ) [45][2013] NSWCCA 90. ( Nahlous )…
Tector v R
[2008] NSWCCA 151

…v Poynder (2007) 171 A Crim R 544; [2007] NSWCCA 157, considered Rampley v The Queen [2010] NSWCCA 293, considered Tector v The Queen (2008) 186 A Crim R 133; [2008] NSWCCA 151, considered COUNSEL: T A Ryan for the applicant J A Wooldridge for the respondent SOLICITORS: Cherry Family Lawyers for the applicant Director of P…
R v Poynder
[2007] NSWCCA 157

…, considered R v Nahlous (2013) 228 A Crim R 503; [2013] NSWCCA 90, considered R v Poynder (2007) 171 A Crim R 544; [2007] NSWCCA 157, considered Rampley v The Queen [2010] NSWCCA 293, considered Tector v The Queen (2008) 186 A Crim R 133; [2008] NSWCCA 151, considered COUNSEL: T A Ryan for the applicant J A Wooldri…
R v Nagy
[2003] QCA 175

…0] NSWCCA 192, considered R v Gajjar (2008) 192 A Crim R 76; [2008] VSCA 268, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Nahlous (2013) 228 A Crim R 503; [2013] NSWCCA 90, considered R v Poynder (2007) 171 A Crim R 544; [2007] NSWCCA 157, considered Rampley v The Queen [2010] NSWCCA 293,…
Griffiths v The Queen
[1989] HCA 39

…ons (Cth) v Hizhnikov (2008) 192 A Crim R 69; [2008] VSCA 269, considered Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, considered Minehan v The Queen (2010) 201 A Crim R 243; [2010] NSWCCA 140, considered R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, considered R v Engeln [2014] QCA 313, con…

Legislation cited in this decision · 1

Probation and Parole Act 1983 (NSW)
1 mention (from Para 5)

CITATION:	R v Sparrow [2015] QCA 271
PARTIES:	R v SPARROW, Ben (applicant)
FILE NO/S:	CA No 23 of 2015 DC No 1515 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Unreported, 9 February 2015
DELIVERED ON:	11 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2015
JUDGES:	Gotterson and Morrison JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to a number of counts including two counts of using a carriage service to procure a person under 16 years of age to engage in sexual activity; five counts of indecent treatment of a child under 16 years; two counts of sodomy of a person under 18 years; and one count of unlawful carnal knowledge of a child under 16 years – where the applicant was sentenced to eight years’ imprisonment, with a non-parole period of four years and six months in respect of the two counts relating to using a carriage service to procure a person under 16 years of age to engage in sexual activity and three years in respect of the remaining eight counts, to be served concurrently – where the applicant was 35 years old and the complainant was 12 years old – where the applicant communicated with the complainant via text message, Facebook, and telephone over three months – where the applicant told the complainant in explicit language of his sexual interest in her – where the applicant met with the complainant in a motel and he performed various sexual acts on her and asked the complainant to perform sexual acts on him – where the applicant and the complainant continued to exchange numerous sexually explicit texts – where the complainant’s mother discovered the Facebook exchanges between the applicant and the complainant – where the police were involved and the applicant was arrested – whether the sentence was manifestly excessive Criminal Code (Cth), s 474.26(1) Probation and Parole Act 1983 (NSW) Cooper v The Queen [2012] VSCA 32, considered Director of Public Prosecutions v Chatterton [2014] VSCA 1, considered Director of Public Prosecutions (Cth) v Hizhnikov (2008) 192 A Crim R 69; [2008] VSCA 269, considered Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, considered Minehan v The Queen (2010) 201 A Crim R 243; [2010] NSWCCA 140, considered R v Asplund(2010) 216 A Crim R 48; [2010] NSWCCA 316, considered R v Engeln[2014] QCA 313, considered R v Fuller [2010] NSWCCA 192, considered R v Gajjar (2008) 192 A Crim R 76; [2008] VSCA 268, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered