R v Squires - [2018] QCA 8

[2018] QCA 8

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
PHILIPPIDES JA

CA No 186 of 2017
DC No 1039 of 2017

THE QUEEN

SQUIRES, Christopher James Applicant

BRISBANE

TUESDAY, 13 FEBRUARY 2018

JUDGMENT

PHILIPPIDES JA: The applicant was convicted upon his plea to an offence pursuant to s 218A of the Criminal Code, that he used electronic communication with intent to procure a person under 16 years to engage in a sexual act. The applicant was sentenced to six months imprisonment, wholly suspended for an operational period of three years. He seeks leave to appeal against that sentence on the basis that it was manifestly excessive.

The sentence proceeded on the basis of an agreed schedule of facts. The offending was committed between 24 April 2015 and 18 December 2015, in the context of the applicant, who was not known to the complainant, sending the complainant a friend request on Facebook, and maintained Facebook contact. The complainant’s date of birth was displayed on her Facebook profile. She was 14 to 15 years of age during the relevant period. The applicant was 20 years of age at the time.

The conversations commenced with a discussion about what the applicant would do if he were in a hotel, and what the complainant would do. The applicant asked the complainant if she would suck his penis, and if she would have sex with him in the movies, and whether they would use a condom or not. The complainant responded, in relation to what the applicant would do if she were wearing a dress in bed, and the complainant replied to the effect that he would have oral sex with her. The applicant and the complainant also subsequently exchanged telephone numbers and spoke over the telephone as well as on Facebook.

The content of the messages thus included queries by the applicant of the complainant as to whether she would perform oral sex on him, have sexual intercourse in public places, or have unprotected sexual intercourse, as I explained. The applicant also described sexual acts that he would perform on the complainant. The applicant asked the complainant to send him a picture of her getting undressed; the complainant sent a photo of her wearing her bra. The applicant commented on her appearance and asked whether she wanted a “dick pic”, and sent her a photo of his penis. He asked her whether she would take her bra off, and that he wanted to see her in her underwear. The complainant sent another picture, to which the applicant replied:

“Yay. You want more to fuck.”

It was in those circumstances that the applicant sent the complainant a picture of his penis. The conduct only ended when the complainant’s father intervened, and brought the matter to the attention of the police.

The applicant took part in an interview with police. Notwithstanding that the applicant had the complainant’s Facebook profile as a friend on Facebook, and the complainant’s telephone number saved in his telephone,…

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 Squires

Details

AGLC: R v Squires [2018] QCA 8
Case: [2018] QCA 8
Decision Date: 13 FEBRUARY 2018

CaseChat Overview and Summary

The case of R v Squires involved the applicant, Christopher James Squires, who was convicted of an offence under s 218A of the Criminal Code, specifically using electronic communication with intent to procure a person under 16 years to engage in a sexual act. Squires was sentenced to six months imprisonment, wholly suspended for an operational period of three years, and he sought leave to appeal against the sentence on the basis that it was manifestly excessive.

The legal issues before the Court of Appeal were whether the sentence imposed was manifestly excessive and whether the sentencing judge correctly exercised his discretion in sentencing Squires. The applicant argued that the sentence was manifestly excessive as it was so unreasonable or plainly unjust as to give rise to an inference that the discretion had miscarried. The applicant submitted that the recording of a conviction and the imposition of a suspended term of imprisonment would significantly impact his social wellbeing and rehabilitation prospects.

The Court of Appeal considered the submissions and found that the sentencing judge correctly identified the operation of s 9(4) of the Penalties and Sentences Act in relation to the exercise of the sentencing discretion in respect of an offence under s 218A of the Code. The Court observed that the sentence imposed was accepted as one that was open to the sentencing judge in the submissions of counsel for the applicant at first instance. The Court held that the sentence of imprisonment imposed by the sentencing judge was not manifestly excessive, as it was not demonstrated to have proceeded on an erroneous approach or to have been so unreasonable or plainly unjust that it is to be inferred that the sentencing discretion was miscarried.

The Court of Appeal concluded that the sentence imposed was within the sound exercise of the sentencing discretion and refused the application for leave to appeal against the sentence imposed. The Court noted that the sentence marked the community's judgment of Squires' actions and gave due weight to the need to deter not just the applicant but anyone else tempted to engage in such acts.

The order of the Court was that leave to appeal was refused.

Orders