THE KINGvER Applicant
[2022] QCA 202
•17 OCTOBER 2022
[2022] QCA 202
COURT OF APPEAL
McMURDO JA
FLANAGAN JA
BODDICE J
CA No 201 of 2022
DC No 63 of 2022
THE KING
v
ER Applicant
BRISBANE
MONDAY, 17 OCTOBER 2022
JUDGMENT
BODDICE J: On 15 September 2022, the applicant pleaded guilty to three counts of using a carriage service to cause offence. He was sentenced to nine months’ imprisonment on each count, to be served concurrently, with an order that he be released after having served three months imprisonment on a recognizance of $2,000, conditional upon him being of good behaviour for a period of three years.
The applicant seeks leave to appeal that sentence. Should leave be granted, three grounds of appeal are relied upon by the applicant.
First, that the sentencing judge erred in refusing to adjourn the sentence for the purpose of the provision of a report that would address the issues of difficulties in custody.
Second, the sentencing judge erred or alternatively assigned undue weight to subjective motivation, namely that the applicant obtained sexual gratification for his behaviour. Third, that the sentence was manifestly excessive.
Each count involved the same female complainant. She was the applicant’s stepdaughter and living with the applicant and her mother at the time of the commission of each offence. The applicant was sentenced on the basis that she was at least 16 years of age, at the time of each offence.
The first two counts involved sending hyperlinks of pornographic videos with accompanying messages querying whether the complainant was the person depicted in the relevant video. The last count concerned text messages sent to the complainant which contained offensive and sexually explicit contents. The first count was committed between 1 January 2019 and 1 January 2020. The second and third counts were committed between 15 December 2020 and 7 January 2021.
The complainant provided a victim impact statement in which she described herself as feeling unsafe, sexualised, angry, and devastated by the applicant’s conduct. She said she had suffered from nightmares, panic attacks, and anxiety, and had attended counselling and been referred to a psychologist.
At the sentence hearing, it was accepted that the applicant was to be sentenced on the basis he had entered early pleas of guilty, had no relevant prior criminal history, had a good work history, and had not reoffended on bail or otherwise not complied with Court orders.
The sentencing judge was also informed by counsel that the applicant had suffered, in 2017, strokes and other neurological events which had caused some paralysis and left the applicant with an acquired brain injury, as a consequence of which the applicant was in receipt of an NDIS package and was receiving ongoing rehabilitation involving physiotherapy two times a week and occupational therapy one time a week.
The sentencing judge found that notwithstanding those circumstances and submissions by the respondent to the effect that it was open to impose a sentence that did not require the applicant to serve actual custody, the aggravating features of the applicant’s conduct meant that no other sentence apart from a sentence of actual imprisonment, was appropriate.
The aggravating features identified by the sentencing judge were that the offences were committed when the applicant was in a relationship with the complainant’s mother and when the applicant was living in the same house with the applicant and her mother; that there were three sets of communications, notwithstanding that the applicant after the first set of communications had been specifically told by the complainant not to send such messages; that the remaining counts involved a number of acts which were persisted in even after being specifically told not to continue; and that the applicant had given disingenuous reasons for his conduct other than his sexual gratification in circumstances where the messages were consistent with the applicant:
“…working through his fantasies about her in his texts to her while she was living in the house and trying to sleep in the house”.
The first ground of appeal relates to an application by counsel to adjourn the sentence after the sentencing judge indicated that a sentence involving actual custody was not only open but being considered by the sentencing judge. The application for an adjournment was said to be necessary to allow the applicant in those circumstances to put on evidence of the physical challenges faced by him in serving actual custody and to seek evidence from a forensic psychologist for the purposes of assessing the prospects of reoffending.
Contrary to the respondent’s submissions, the application for an adjournment was not abandoned. The sentencing judge refused the application for an adjournment on both bases.
First, while the sentencing judge accepted the applicant had suffered neurological events and needed the assistance identified for his rehabilitation and daily activities, the sentencing judge said that notwithstanding that he had received in evidence a letter from the applicant’s doctor stating that the applicant, due to his stroke:
“…had significant cognitive and functional deficits and that he has continuously had a carer to support him through his day-to-day activities …”
there was no evidence before the sentencing judge that those identified difficulties could not be addressed in a correctional centre.
Second, whilst the sentencing judge had flagged that he had:
“…no reason to think in the absence of [court orders], if [the applicant] came across another young woman, that he would not behave in the same way again …”
it was not necessary for a fair hearing to adjourn to allow the preparation of a report by a forensic psychologist. Instead, the sentencing judge said the applicant would be sentenced on the basis that this is a one-off event, and that he is not a high risk of reoffending.
Whilst the sentencing judge’s acceptance of the applicant being sentenced on the basis that his conduct involved a one-off event and that he was not a high risk of reoffending may have overcome any unfairness in the refusal of an opportunity to present evidence from a forensic psychologist, that concession did not address the obvious unfairness in refusing the applicant the opportunity for an adjournment to present evidence as to the effect of a sentence of actual custody, having regard to the applicant’s neurological and physical deficits, which warranted an NDIS package and weekly care.
The physical and mental condition of the applicant was a specific matter the Court must take into account on sentence under s 16A(2)(m) of the Crimes Act 1914 (Cth).
As that issue was a matter that was to be specifically taken into account in the exercise of the sentencing discretion, the refusal of an adjournment to obtain evidence in relation to the effects of a period of actual custody on the applicant deprived the applicant of the opportunity to present evidence relevant to a matter that had to be taken into account by the Court. That was an error which warrants a re-exercise of the sentencing discretion.
Whilst that conclusion would render it unnecessary to consider the remaining grounds of appeal, a consideration of the mitigating and aggravating features of the applicant’s criminal conduct also supports a conclusion that the sentence was manifestly excessive. Although the applicant had engaged in reprehensible criminal behaviour in respect of his teenage stepdaughter, including repetitive conduct, notwithstanding specific requests that he desist, the applicant had entered early pleas of guilty, had no relevant prior criminal history, had a good work history and was sentenced on the basis his criminal conduct involved a one-off event and that the applicant was not a high risk of reoffending.
The sentencing judge’s finding that no sentence apart from a sentence of actual imprisonment was appropriate evidenced a misapplication of sentencing principles, resulted in the imposition of a sentence that was plainly unjust and unreasonable. That conclusion particularly flows from the fact that the sentence imposed involved a short period of actual custody in respect of an offender whose physical condition required the assistance of allied health professionals, pursuant to an NDIS package.
When re-exercising the sentencing discretion, it is relevant to have regard to further evidence as to the effects of custody on the applicant’s neurological deficits. Notwithstanding the need for care and assistance, the applicant has received no therapy since entry into Corrective Services custody. As a consequence, he has significant difficulties with mobility, rendering him vulnerable within the Corrective Services environment. The aggravating features of the applicant’s conduct warranted the imposition of a sentence indicating the community’s denunciation, and that provides a deterrent aspect in respect of similar conduct by others.
However, the significant mitigating factors, including the early plea of guilty, lack of criminal history and the significant neurological deficits, supported a conclusion that the mitigating factors warranted the imposition of a sentence which does not require the applicant to serve actual custody. The applicant should be sentenced to an effective head sentence of nine months’ imprisonment with an order that he be released forthwith on a recognizance of $2,000, such that he be of good behaviour for a period of three years.
I would order:
Leave to appeal be granted.
The appeal be allowed.
The sentences below be set aside.
On each count, the applicant be sentenced to nine months’ imprisonment, to be served concurrently.
That the time served in custody between 15 September 2022 and 16 October 2022 be declared as time served in respect of the sentences of imprisonment.
Pursuant to s 21B of the Crimes Act 1914, as amended, the applicant be released forthwith upon him entering into a recognizance in the sum of $2,000 on the condition he be of good behaviour for a period of three years.
McMURDO JA: I agree.
FLANAGAN JA: I agree.
McMURDO JA: The orders will be as have been pronounced by Justice Boddice. The Court will adjourn.
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