R v Nash[2001] QCA 543

COURT OF APPEAL

de JERSEY CJ

McMURDO P

WILLIAMS JA

CA No 258 of 2001

THE QUEEN

v.

WAYNE MICHAEL NASH  Applicant

BRISBANE

DATE 28/11/2001

JUDGMENT

WILLIAMS JA:  The applicant pleaded guilty in the District Court at Townsville to four counts of indecent dealing with a boy under 16 years of age.  On the first count he was sentenced to imprisonment for a period of six years and on each of the other counts to imprisonment for a period of five years.  Those sentences were ordered to be served concurrently.  A declaration was made that he had spent 294 days in presentence custody.  An order was also made requiring him to report on his release from prison.  He seeks leave to appeal against the sentences imposed on the ground that they are manifestly excessive.

It was conceded by counsel for the Crown that the sentences imposed could not be justified.  It was conceded that there had been an error in the exercise of the sentencing discretion.  The question remains as to the appropriate sentence to be imposed with respect to the offences in question.

The offence which was the subject of the first count on the indictment involved the applicant touching a 15 year old boy on the penis.  The boy had been known to the applicant for some time and apparently had hurt his back whilst riding a pushbike.  That resulted in the applicant initially massaging his back but, in the course of that activity, he fondled the penis.  The boy continued to see the applicant for some time thereafter.  He expressly declined to put in a victim impact statement.

The other three counts all occurred on 5 November 2000 and in what was described by both counsel and the sentencing Judge as a bizarre set of circumstances.  Before dealing with the circumstances, it is appropriate to record at this stage that the applicant has a history of offending by committing acts of indecency with young boys.  He was first convicted for such an offence on 4 June 1970 in the Sydney Court of Sessions and his last, and eleventh conviction, was in the Cooma District Court on 5 March 1992.  Some of those 11 offences involved the offence of sodomy and, indeed, the last term of imprisonment that the applicant served was for a period of approximately eight years.

So he was a person with a predisposition to committing offences of this type.  It should also be said that at the time of the offences he was aged 59 years.  Apparently the complainants in all counts were what was described in the material before the sentencing Judge as street kids.  The group apparently frequented the residence of a man named Williams.  It appears that Williams, and this group of young boys, decided upon a plan to encourage the applicant to indecently touch one or more of them so that the police could be called and the applicant charged.

With that in mind, some photographs were taken of the boys both prior to and during the applicant's presence at Williams' residence on the day in question.  It appeared from material that was placed before the sentencing Judge that Williams encouraged the boys to, in effect, start fondling their own genitalia and acting gay, as it was expressed, in order, no doubt, to excite the interest of the applicant.

Against that background the applicant committed an act of oral sex on one of the boys and also fondled that boy's penis.  That conduct was the subject of two of the counts.  The last count involved touching another boy on the penis.  Those boys were aged 14 and 15 years respectively.

In fixing the sentences of six years' imprisonment and five years' imprisonment, it appears that the learned sentencing Judge placed far too much emphasis on the criminal history of the applicant and did not give sufficient weight to the gravity of the particular offences in question.  Touching boys of that age on the penis, particularly in the rather unusual circumstances of this case, whilst serious, would generally be regarded as towards the lower end of the range of offences of this type.  Certainly the act of oral sex was more serious and would ordinarily call for a somewhat higher penalty.

In the circumstances it seems to me that it is appropriate for this Court to impose the same sentence with respect to each of the four offences in question.  Regard must also be had to the fact that it was a plea of guilty and an early plea at that. 

Counsel for the Crown before this Court contended for a general range of three to five years for offences of this type.  Counsel for the applicant contended for a range of two to three years' imprisonment with a recommendation for earlier release on parole.  Having regard to the criminal history of the applicant, to the circumstances in which each of the four offences were committed, and the early plea of guilty, I am of the view that a sentence of three years' imprisonment is the appropriate one to be imposed.  Such a sentence is in keeping with the sentences in R v. Massey CA 63 of 1999 and R v. Bourne CA 291 of 1991.

In all of the circumstances, I would grant the application for leave to appeal against sentence, set aside the sentences imposed and in lieu thereof impose a sentence of three years' imprisonment with respect to each of the four offences, the sentences to be served concurrently.  The declaration as to presentence custody and the reporting order should remain.

THE CHIEF JUSTICE:  I agree.  I think it is unfortunate that the Prosecutor before the learned sentencing Judge did not refer his Honour to any past cases from which his Honour might have distilled a general sentencing range.  The Prosecutor appears to have offered the Judge no guidance at all as to an appropriate range.  I would invite the Director of Public Prosecutions, who I note is present at this stage in the courtroom, to remind the Prosecutors of my view, which is generally shared within the Court, that Prosecutors should ordinarily present sentencing Judges with details of previous cases submitted to be comparable, and to specify a range suggested to apply.  Had that occurred here, the error would likely not have been made.

THE PRESIDENT:  I agree with the orders proposed by Justice Williams and with his reasons and with the additional comments of the Chief Justice.

THE CHIEF JUSTICE:  The order will be as indicated by Justice Williams.