R v Thompson - [2019] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2019] QCA 245

PARTIES:

R
v
THOMPSON, Dion John
(applicant)

FILE NO/S:

CA No 335 of 2018
DC No 183 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 9 November 2018 (Cash QC DCJ)

DELIVERED ON:

Date of Orders: 21 February 2019
Date of Publication of Reasons: 12 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

Date of Orders: 21 February 2019

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Sentence imposed on 9 November 2018 is set aside.

4.    The applicant is sentenced to a period of imprisonment of 105 days.

5.    Declare that the 105 days between 9 November 2018 and today is time served under that sentence.

6.    The appellant be released under the supervision of an authorised Corrective Services Officer be a period of one year and that he must comply with the requirements set out in section 93(1) of the Penalties and Sentences Act 1992 (Qld) and report by 4.00 pm Monday, 25 February 2019 to an authorised Corrective Services Officer at Level 3, 27 Cornmeal Parade, Maroochydore, 4558.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – 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 a child with intent to procure – where the applicant was sentenced to four months imprisonment with two years’ probation – where it was submitted that, in sentencing the applicant, the sentencing judge erred in finding that there were no “exceptional circumstances” in the case – where the primary judge only specifically addressed the factor of extra-curial punishment and certain aspects arising from a psychologist’s report in finding that exceptional circumstances did not exist – where the primary judge did not articulate why exceptional circumstances did not exist in the wider circumstances – where the primary judge did not refer to the applicant’s mental illness and other personal factors – whether the primary judge erred in finding that there were no exceptional circumstances

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5
Criminal Code (Qld), s 218B(1)(a)
Penalties and Sentences Act 1992 (Qld), s 9

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, considered
R v GAW[2015] QCA 166, considered
R v Schenk; Ex parte Attorney-General (Qld)[2016] QCA 131, considered
R v Tootell; Ex parte Attorney-General (Qld)[2012] QCA 273, considered

COUNSEL:

J Crawford for the applicant
C M Cook for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Philippides JA.
PHILIPPIDES JA: On 7 September 2018, the applicant pleaded guilty to one count of grooming…

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 Thompson

Details

AGLC: R v Thompson [2019] QCA 245
Case: [2019] QCA 245
Decision Date: 12 November 2019

CaseChat Overview and Summary

In the matter of R v Thompson, the appellant challenged the sentence imposed on him after pleading guilty to grooming a child with intent to procure. The case was heard in the Court of Appeal, which was tasked with determining whether the primary judge erred in concluding that there were no exceptional circumstances warranting a non-custodial sentence. The appellant contended that the primary judge had failed to adequately consider the impact of extra-curial punishment and other personal factors in finding that exceptional circumstances did not exist. The primary judge had only specifically addressed the factor of extra-curial punishment and certain aspects arising from a psychologist's report, but did not articulate why exceptional circumstances did not exist in the wider circumstances of the case. The appeal court needed to consider whether the primary judge's failure to consider other relevant factors constituted an error in finding that there were no exceptional circumstances.

The court considered the principles established in previous cases regarding the meaning of “exceptional circumstances” as outlined in section 9(4)(b) of the Penalties and Sentences Act. The court acknowledged that there is no clear prescription of what circumstances are capable of being regarded as exceptional, and that consideration must be given not only to the unusualness of the individual factors but to their weight and those factors which, taken alone, may not be out of the ordinary, may in combination constitute an exceptional case. The court also noted that a finding that exceptional circumstances exist is one made in the exercise of a discretion and one where reasonable minds may differ. In this case, the court found that the primary judge had erred in not adequately considering the impact of extra-curial punishment and other personal factors in finding that exceptional circumstances did not exist. The court held that the primary judge's failure to consider these factors constituted an error in finding that there were no exceptional circumstances.

As a result of the court's findings, the appeal was allowed and the sentence imposed on the appellant was set aside. The court sentenced the appellant to a period of imprisonment of 105 days, with the 105 days between 9 November 2018 and the date of the orders declared as time served under that sentence. The appellant was to be released under the supervision of an authorised Corrective Services Officer for a period of one year, and must comply with the requirements set out in section 93(1) of the Penalties and Sentences Act 1992 (Qld). The appellant was required to report by 4.00 pm on Monday, 25 February 2019, to an authorised Corrective Services Officer at Level 3, 27 Cornmeal Parade, Maroochydore, 4558.

Orders

Orders of the court

Date of Orders: 21 February 2019

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed on 9 November 2018 is set aside.

4. The applicant is sentenced to a period of imprisonment of 105 days.

5. Declare that the 105 days between 9 November 2018 and today is time served under that sentence.

6. The appellant be released under the supervision of an authorised Corrective Services Officer be a period of one year and that he must comply with the requirements set out in section 93(1) of the Penalties and Sentences Act 1992 (Qld) and report by 4.00 pm Monday, 25 February 2019 to an authorised Corrective Services Officer at Level 3, 27 Cornmeal Parade, Maroochydore, 4558.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The sentencing judge expressed a concern in relation to the report and the applicant’s prospective rehabilitation that, while the applicant had substantially addressed his opioid dependency, the same could not be said in relation to amphetamine dependency, which was of particular concern given that the offending was committed against the background of disinhibition after consuming methylamphetamine. The sentencing judge stated he was particularly influenced by that factor in concluding that exceptional circumstances were not demonstrated that would permit the imposition of a sentence that did not involve a period of actual custody.ConsiderationImpact of the extra-curial punishment In relation to the ground alleging failure to reflect the impact of the extra-curial punishment in the sentence imposed, the applicant contended that the sentencing judge did not appear to have taken into account the significant extra-curial punishment in any tangible way in the sentence imposed. It is to be noted that it was not disputed that there were other motivations for the attack upon the applicant in December 2017, but his Honour did identify the fact of the injuries sustained by the applicant as going to whether the combination of circumstances demonstrated that exceptional circumstances existed. That raises the ground going to whether if it was open to his Honour to find that there were not exceptional circumstances, such that the imposition of a period of actual custody was not required to be imposed.Exceptional circumstances The meaning of the words “exceptional circumstances” now found in s 9(4)(b) of the PSA were considered in R v Tootell; Ex parte Attorney-General (Qld),[3] R v GAW[4] and R v BCX[5] from which the following principles emerge:1.The PSA does not define what amounts to “exceptional circumstances” but the expression is to be read in its statutory context and mindfully of the intent of s 9 of the PSA to make it the usual case that those who commit sexual offences against children will serve actual imprisonment.[6]2.There is no one clear prescription of what circumstances are capable of being regarded as exceptional; consideration is to be given not only to the unusualness of the individual factors but to their weight and those factors, which taken alone may not be out of the ordinary, may in combination constitute an exceptional case.[7]3.A single episode of low level offending may, in the circumstances of a particular case, where, for example, it is combined with the absence of prior or subsequent sexual offending, lead to a finding of exceptional circumstances.[8]4.Sentencing under s 9(4) of the PSA requires an integrated approach which takes into account all the circumstances of the case, having regard to the other provisions of s 9 of the PSA. It is not a stepped process.[9]5.A finding that exceptional circumstances exist is one made in the exercise of a discretion and one where reasonable minds may differ.[10][3][2012] QCA 273.[4][2015] QCA 166.[5][2015] QCA 188.[6]R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273 at [19]; R v GAW [2015] QCA 166 at [54].[7]R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273 at [18] and [24]; R v GAW [2015] QCA 166 at [54].[8]R v GAW [2015] QCA 166 at [3] and [66]; R v BCX [2015] QCA 188 at [29], [1] and [2].[9]R v BCX [2015] QCA 188 at [29], [1] and [2]; R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131 at [34].[10]R v BCX [2015] QCA 188 at [32], [33], [1] and [2].

CITATION:	R v Thompson [2019] QCA 245
PARTIES:	R v THOMPSON, Dion John (applicant)
FILE NO/S:	CA No 335 of 2018 DC No 183 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 9 November 2018 (Cash QC DCJ)
DELIVERED ON:	Date of Orders: 21 February 2019 Date of Publication of Reasons: 12 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2019
JUDGES:	Fraser and Philippides and McMurdo JJA
ORDERS:	Date of Orders: 21 February 2019 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed on 9 November 2018 is set aside. 4. The applicant is sentenced to a period of imprisonment of 105 days. 5. Declare that the 105 days between 9 November 2018 and today is time served under that sentence. 6. The appellant be released under the supervision of an authorised Corrective Services Officer be a period of one year and that he must comply with the requirements set out in section 93(1) of the *Penalties and Sentences Act* 1992 (Qld) and report by 4.00 pm Monday, 25 February 2019 to an authorised Corrective Services Officer at Level 3, 27 Cornmeal Parade, Maroochydore, 4558.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – 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 a child with intent to procure – where the applicant was sentenced to four months imprisonment with two years’ probation – where it was submitted that, in sentencing the applicant, the sentencing judge erred in finding that there were no “exceptional circumstances” in the case – where the primary judge only specifically addressed the factor of extra-curial punishment and certain aspects arising from a psychologist’s report in finding that exceptional circumstances did not exist – where the primary judge did not articulate why exceptional circumstances did not exist in the wider circumstances – where the primary judge did not refer to the applicant’s mental illness and other personal factors – whether the primary judge erred in finding that there were no exceptional circumstances Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5 Criminal Code (Qld), s 218B(1)(a) Penalties and Sentences Act 1992 (Qld), s 9 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, considered R v GAW[2015] QCA 166, considered R v Schenk; Ex parte Attorney-General (Qld)[2016] QCA 131, considered R v Tootell; Ex parte Attorney-General (Qld)[2012] QCA 273, considered
COUNSEL:	J Crawford for the applicant C M Cook for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent