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R v Vizzard

 

[2018] QCA 237

 

[2018] QCA 237

COURT OF APPEAL

HOLMES CJ

GOTTERSON JA

HENRY J

CA No 98 of 2018

DC No 1796 of 2016

DC No 725 of 2018

THE QUEEN

v

VIZZARD, Simon Blair

Applicant

BRISBANE

WEDNESDAY, 26 SEPTEMBER 2018

GOTTERSON JA:  On the 16th of April 2018, the applicant, Simon Blair Vizzard, pleaded guilty in the District Court at Brisbane to two offences.  One was that on the 24th of April 2002, he had taken an indecent photograph of an eight year old boy without legitimate reason.  The other was that at or about that time, he stole a digital camera and associated equipment.  The applicant was sentenced to 12 months imprisonment for the indecency offence and two months imprisonment for the stealing.  The sentences are concurrent.  They were immediately suspended for an operational period of two years.

The applicant wishes to appeal his sentence as manifestly excessive.  In order to understand the submissions on that issue, it is necessary to refer to the circumstances of the offending and certain other matters.  Prior to the subject offending and between the 29th of October 1997 and the 16th of March 2001, the applicant had committed 26 offences, 25 of which were serious sexual offences against three boys aged 11, 13 and 14.  They involved oral sex, attempts at anal sex, having the boys perform sexual acts with each other, and introducing the boys to sex toys and pornography.  The applicant was arrested.  He committed the subject offences whilst on bail for those offences.

In April 2002, the applicant hired an expensive camera with $12,000 from a local camera shop.  He took it to a park at the Gold Coast for photographing an eight year old boy whom a modelling agency had asked him to film.  He knew the boy and his parents.  At a time after the boy’s mother had needed to leave the photoshoot, the applicant posed the boy in togs.  He oiled the boy’s body and spread his legs, stretching the boy’s head down in a suggestive manner.  A woman who observed these events intervened and alerted the boy’s mother.

The next day, the applicant flew to Mexico, taking the camera with him.  The applicant abused children in Mexico and in 2003, he was sentenced to 10 years imprisonment.  After a little over eight years imprisonment, he was extradited to Australia.  On his return, he re-entered custody.  He was sentenced in June 2014 for the offences for which he had been on bail in April 2002 and to which he pleaded guilty.  Head sentences of seven and six years with parole eligibility after three years were imposed.  His time in pre-sentence custody of some 858 days were declared to be time served.

On appeal, in late 2014, the head sentences were reduced to four years and three years respectively.  But the other orders made in sentence were not altered.  The reduction in the head sentences was informed by the totality principle, this Court being of the view that had the applicant been sentenced at the same time for both those offences and Mexican offences, a head sentence of 15 years, allowing for a reduction to eight years actually served in Mexico with parole eligibility after 11 years, would have been manifestly excessive, having regard to comparable sentences.

On the 1st of February 2016, a judge of the Supreme Court ordered that the applicant be subject to a supervision order of five years duration under the Dangerous Prisoners (Sexual Offenders) Act 2003 [indistinct] the applicant breached the order in January 2017 and again in September 2017.  The 2002 indecency offence was indicted separately from the offending which had concluded by the 16th of March 2001.  It was count 10 in a 12 count indictment presented on the 8th of September 2016.  The stealing offence was charged summarily and transferred to the District Court under s 651 of the Criminal Code.  On the 16th of June 2017, the Crown entered a nolle prosequi in respect of counts 1 to 9 on the indictment.  A pre-trial ruling was made on the same date that s 42 of the Extradition Act 1988 (Cth) prohibited the prosecution of counts 11 and 12.  The applicant’s application for a similar order in respect of count 10 that had initially been made was effectively withdrawn at the pre-trial hearing.

In her sentencing remarks, the learned sentencing judge noted that the indecency offence did not involve sexual contact or nudity.  The gravamen of the offending was, in her Honour’s view, exploitation and the recording of an image with an obvious indecent intention.  She categorised as at the lowest level of child exploitation material.  Nevertheless, she remarked, the subject offending had occurred within a context of persistent offending against young children.  The learned sentencing judge also noted that the prosecutor had acknowledged that had the indecency offence been included in the 2014 prosecution, the practical result would have been the recording of a conviction for it without enlargement of the head sentences.  As well, there had been a concession by the prosecutor that actual imprisonment would have been excessive in light of the sentences imposed in 2014.

Her Honour considered that the applicant’s history very clearly demonstrated an ongoing risk of offending on his part.  It was a matter of great concern.  She was not minded to simply record convictions for the two offences without further punishment.  When the terms of imprisonment were imposed, her Honour stated that they were to be suspended in order to avoid breaking the totality principle.

The applicant submits that his sentence is manifestly excessive on account of a failure on the part of the learned sentencing judge to give sufficient weight to the totality principle and to considerations of delay proceedings.  With regard to totality, the applicant places central reliance upon the proposition that had he been sentenced for the indecency offence with the other offences in 2014, no greater head sentence would have been imposed.  That, it is argued, was a compelling argument for acceding to the defence submission for a recorded conviction without further punishment.  In rejecting that submission, the learned sentencing judge had misapplied the totality principle and had imposed a sentence that, in written submissions, was described as crushing in its overall effect.  That characterisation was, however, withdrawn in oral submissions.

In my view, this challenge to the sentence is unpersuasive.  The learned sentencing judge did have regard to the totality principle.  She also had regard to the applicant’s breaches of the supervision order in the intervening period.  These matters guided her to impose sentences which did not increase the time in actual custody to be served by the applicant in addition to that served for the offences for which he was sentenced in 2014.  In this way, her Honour accommodated the acknowledgement that had been given by the prosecutor.  I would add that the totality principle did not confine her Honour to recording of a conviction.  The sentencing discretion was one to be exercised with appropriate guidance given by the principle.  It did not dictate that the discretion was to be exercised in only one way.

Although counsel correctly abandoned any suggestion that either sentence was crushing, I would observe that neither sentence deserves that epithet.  Each term of imprisonment is suspended without the requirement of actual custody.  It is true that the applicant is at risk that the suspension might be revoked for misconduct on his part during the operational period of two years.  However, that risk is considerably moderated by the fact that an operational period will be wholly concurrent with the supervision order which is to continue until the 1st of February 2021.

As to delay, the submission made at the sentence hearing for the applicant, both orally and in writing, was the delay in having the indecency charge heard should not be attributed to the applicant.  Her Honour did not do so in her sentencing remarks.  However, no submission was made to her Honour that any delay between commission of the offences and the imposition of the sentence had resulted in some unfairness to the applicant.  No reference was made to the decision of this Court in R v L; ex parte Attorney-General [1996] 2 Qd R 63 or to any of the kinds of consequences identified as possible unfairness in that case.  In any event, as to those kinds of consequences, this is not a case in which the applicant had shown some progress in rehabilitation during delay not of his making.  Nor was such delay shown to have curtailed the applicant’s liberty, called into question his reputation or left him in a state of uncertainty.  He was always aware that he had been extradited in relation to charges concerning this eight year old complainant.

For these reasons, I am satisfied that the learned sentencing judge had appropriate regard for both the totality principle and the issue of delay in sentencing the applicant.  I do not accept the applicant’s submission that insufficient weight was given to either or that the sentence for each of the two subject offences is manifestly excessive on that count.  Accordingly, I would refuse the application for leave to appeal against sentence.

HOLMES CJ:  I agree.

HENRY J:  I agree.

HOLMES CJ:  The order of the Court is that the application for leave to appeal against sentence is refused.

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Editorial Notes

  • Published Case Name:

    R v Vizzard

  • Shortened Case Name:

    R v Vizzard

  • MNC:

    [2018] QCA 237

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Gotterson JA, Henry J

  • Date:

    26 Sep 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC1796/16; DC725/18 (No Citation) 16 Apr 2018 Date of Sentence.
Appeal Determined (QCA) [2018] QCA 237 26 Sep 2018 Application for leave to appeal against sentence refused: Holmes CJ, Gotterson JA, Henry J.

Appeal Status

{solid} Appeal Determined (QCA)