R v Tracey

[2010] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tracey [2010] QCA 97

PARTIES:

R
v
TRACEY, Simon Gerard
(applicant/appellant)

FILE NO/S:

CA No 242 of 2009
DC No 423 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2010

JUDGES:

Muir and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence be allowed;

2.   The appeal be allowed, but only to the extent that for counts 24, 25, 28 and 29, three year terms of imprisonment be substituted for the five year terms.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where applicant convicted of 27 counts of indecent treatment of a child under 12 years of age and four counts of indecent treatment of a child under 16 – where applicant sentenced to five years imprisonment for each of the more serious counts and two years imprisonment for each of the other counts to be served concurrently – where parole eligibility date set at 18 months – where applicant entered an early guilty plea, made confessions and spent 427 days in pre-sentence custody – where applicant argued parole eligibility date fixed was incompatible with delivery of required sexual offender programs – where applicant argued sentence did not recognise his early guilty plea and confessions – whether Court should re-exercise sentencing discretion

Penalties and Sentences Act 1992 (Qld), s 160D

R v Fursey[2008] QCA 324, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited

COUNSEL:

The applicant/appellant appeared on his own behalf

M B Lehane for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA:  The applicant, who was between 55 and 58 years of age at the time of the offences, was convicted after pleas of guilty of 27 counts of indecent treatment of a child under 12 years of age and four counts of indecent treatment of a child under 16.  He was sentenced to five years imprisonment for each of counts 24, 25, 28 and 29 and to two years imprisonment for each of the other counts.  All terms of imprisonment were ordered to be served concurrently.  A parole eligibility date of 2 January 2010 was fixed; that being the date by which the applicant had served 18 months of his sentences.  The 427 days spent by the applicant in pre-sentence custody was declared to be imprisonment already served under the sentences.

1. The count 24 and 25 offences were committed in mid 2006 when the complainant girls, both aged 10, spent the night at the applicant's house.  In the course of playing some kind of "favour/reward game", when the girls were lying naked on the applicant's bed, he…