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R v Pike[2021] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pike [2021] QCA 285

PARTIES:

R

v

PIKE, John David

(applicant)

FILE NO/S:

CA No 218 of 2020

DC No 1852 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 25 September 2020 (Loury QC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2021

JUDGES:

Fraser and McMurdo JJA and Bradley J

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUND FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own guilty pleas of 39 counts of sexual offences on an indictment – where the offending occurred over three decades and involved six boys aged between 11 and 16 – where the applicant was sentenced to an effective head sentence of 16 years imprisonment – where the applicant will be eligible to apply for parole after serving half of that sentence – where the guilty plea came late on the morning of the applicant’s trial – whether the sentencing judge erred in not adequately reducing the sentence to reflect the applicant’s guilty pleas

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUND FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to cumulative eight year sentences for each of two groups of offending – where the sentencing judge declined to declare the rape count a serious violent offence – where the sentencing judge declined to fix parole eligibility at one third of the head sentence – where there was insufficient evidence of the applicant’s rehabilitation relevant to risk of reoffending – whether the sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 13(1)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, applied

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

R v CCR [2021] QCA 119, followed

R v Coutts [2016] QCA 206, followed

R v Dib [2003] NSWCCA 117, considered

R v EP [2020] QCA 109, considered

R v F [1996] QCA 490, considered

R v GBF [2019] QCA 4, considered

R v H [1999] QCA 465, considered

R v Hutchinson [2010] QCA 22, considered

R v MCW [2019] 2 Qd R 344; [2018] QCA 241, cited

R v Pearce [1997] QCA 303, considered

R v Ungvari [2010] QCA 134, cited

R v Wilson [1990] QSCCCA 299, considered

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited

COUNSEL:

N V Weston for the applicant

D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment given by Bradley J and the order proposed by his Honour.
  2. [2]
    McMURDO JA:  I agree with Bradley J.
  3. [3]
    BRADLEY J:  The applicant seeks leave to appeal against the sentence imposed by Judge Loury QC on 25 September 2020.  The sentence was imposed in respect of convictions recorded on each of 39 counts on an indictment.  The convictions followed guilty pleas by the applicant to each of the counts.  The 39 counts comprise: 35 of indecent treatment of a child under 16, of which two have the aggravating circumstance that the child was under 14 years, and 10 others have the aggravating circumstance that the child was under the applicant’s care for the time being; two counts of unlawful carnal knowledge of a child under 16 years against the order of nature; one count of indecent assault; and one count of rape.
  4. [4]
    The applicant’s offending involved six boys aged between 11 and 16.  It occurred over three decades from February 1974 to November 2006.  The applicant was aged between 28 and 60 years when he committed the offences.  He was 74 at sentence.
  5. [5]
    The applicant seeks leave to appeal the sentence imposed on two proposed grounds, and has made submissions that the learned sentencing judge erred in not reducing, or not adequately reducing, the sentence to reflect the applicant’s pleas of guilty.  The grounds of appeal were substituted for the former grounds, by leave granted at the hearing.

Background

  1. [6]
    The applicant was extradited from South Australia and charged with offending against three of the complainants on 28 March 2018.  In his first interview with police, the applicant admitted knowing and spending time with the three when they were children.  He denied any sexual contact with any of them before they turned 17.  He made derisive remarks about their character.  On 24 April 2018, when charged with offences against a fourth complainant, he denied having any sexual contact and repeated his earlier denials.  In May 2018, when charged with offences against a fifth complainant, he declined to be interviewed.
  2. [7]
    The matter proceeded to a committal hearing, at which the applicant’s counsel cross-examined each of the then five complainants about potential collusion between them.  The investigating officer was also cross-examined.  On 10 June 2019, the applicant was committed for trial.
  3. [8]
    The first indictment was presented on 9 October 2019.  It contained counts for offences against five of the complainants.  The applicant applied to sever the counts relating to two of the complainants from the other three.  This was refused.
  4. [9]
    On 13 March 2020, the matter was listed for trial in the week commencing 14 September 2020.
  5. [10]
    In January 2020, the applicant had been charged with offences against a sixth complainant.  These offences proceeded by registry committal on 17 August 2020.  They were joined to the existing indictment.  The applicant applied to sever them.  His application was refused on 8 September 2020.
  6. [11]
    The trial was listed to commence on 15 September 2020.  On that morning, the applicant confirmed he would be pleading guilty to all 39 counts on a replacement indictment, not significantly different to those on the original indictment (concerning the first five complainants) and those joined (concerning the sixth).  He was arraigned and pleaded guilty to each count.
  7. [12]
    At the sentencing hearing, the Crown submitted that comparable cases supported a sentence of eight to nine years imprisonment for each of two “groups” of offences; the first group being counts 1 to 28, committed before 2000; and the second group counts 29 to 39, committed in or after that year.  Such sentences would attach to the most serious offences in each group, being counts 5 and 27 in the first group and count 29 in the second group.
  8. [13]
    The applicant’s counsel at the sentencing hearing submitted that “a head sentence of in the order of seven years would properly reflect the criminality” of the applicant’s conduct involved in the first group and “also mark the matters in mitigation”.  Defence counsel also submitted that “a sentence in the order of not more than 7 years properly reflects the criminality of the offending and is consistent with the authorities” in respect of the conduct involved in the second group.
  9. [14]
    The sentence proposed by the applicant’s counsel for the first group was explained as providing “some moderation of sentencing so as to reflect the totality of the offending, the totality of the sentence, and avoid the crushing nature of it.”  For the second group, it was submitted that “the comparable cases reflected incidents of sentences between 7 and 9 years”, the nine year sentences “reflected offending that was being dealt with after trial”, and none reflected the circumstances of the applicant “in so far as the period of time elapsed since offending, the age of the defendant, or the demonstration of rehabilitation.”

Sentence

  1. [15]
    The learned sentencing judge imposed an effective head sentence of 16 years, assigning cumulative eight year sentences for each of the group one and the group two offending.  Her Honour declined the Crown submission to declare the rape (count 29) a serious violent offence.  Her Honour also declined to adopt the submission by defence counsel that a parole eligibility date should be fixed at one third of the effective head sentence.
  2. [16]
    Her Honour explained:

“I am not satisfied that the aggravating features are such that I ought to declare the offence of rape a serious violent offence.  However, equally I do not consider that I must follow a convention and order your early release on parole.  I consider that punishment, denunciation, deterrence and community protection warrant your being required to serve a half of that sentence before becoming eligible for parole.  Accordingly, I will make no order with respect to parole.”

  1. [17]
    This effective sentence of 16 years imprisonment was the result of individual sentences as follows:
    1. (a)
      on each of counts 1, 3, 4, 6, 7, 8, 10, 11, 12, 14, 16, 18, 20, 22, 24, 26, 28, 31, 34, 35 and 37 the applicant was sentenced to three years’ imprisonment;
    2. (b)
      for each of counts 2, 9, 13, 15, 17, 19, 21, 23, 25, 32, 33, 36, 38 and 39, he was sentenced to two years’ imprisonment;
    3. (c)
      on each of counts 5 and 27 (carnal knowledge of any person against the order of nature), he was sentenced to eight years’ imprisonment; 

(All of these terms of imprisonment are to be served concurrently with each other.)

  1. (d)
    on count 29 (rape), the applicant was sentenced to eight years’ imprisonment, cumulative upon the sentence imposed for counts 5 and 27.
  1. [18]
    The sentence of three years imprisonment for count 1 (indecent assault on a male) was the maximum penalty for that offence.  The applicant digitally penetrated the anus of the then 14 or 15 year old complainant, after supplying him with alcohol to the point of intoxication.
  2. [19]
    The sentences for counts 2 and 3 (indecent treatment of boys under 16, under 14) were less than half the seven year maximum.  For counts 4, 6 to 26 and 28, the sentences of two and three years may be compared to the five year maximum.  For counts 30 to 39 (indecent treatment of a child under 16, under care) the sentences of two and three years were imposed in light of a maximum penalty of 14 years imprisonment.
  3. [20]
    No individual challenge is made to these parts of the sentence.  Given the features of these offences, none was warranted.  As parts of the totality of the applicant’s offending, they are relevant to assessment of the effective head sentence.
  4. [21]
    The applicant’s full-time release date and the date he will be eligible to apply for parole turn on the sentences imposed for counts 5 and 27 (carnal knowledge) and count 29 (rape).  The maximum sentence for each of the carnal knowledge offences was 14 years imprisonment.  For rape it was imprisonment for life.  Her Honour imposed sentences of eight years for each offence, with the sentence for rape cumulative on the concurrent sentences for the carnal knowledge offences.
  5. [22]
    The practical effect of her Honour’s decision was to require the applicant to serve 50 per cent of the cumulative 16 year head sentence before parole eligibility, rather than 60 per cent sought by the Crown or the 33 per cent sought by the applicant.
  6. [23]
    Her Honour declared 905 days of pre-sentence custody as imprisonment already served by the applicant.

Grounds of appeal

  1. [24]
    The applicant seeks leave to appeal on the amended grounds that:
    1. (a)
      The sentence imposed was manifestly excessive; and
    2. (b)
      The learned sentencing judge erred in not reducing, or not adequately reducing, the sentence to reflect the applicant’s plea of guilty.
  2. [25]
    It is convenient to consider the second ground of appeal before the first.

Failure to reduce the sentence to reflect the plea of guilty

  1. [26]
    A guilty plea has a “utilitarian value”.  It has an objective factor, as well as subjective considerations, the latter including whether the plea was attended by remorse, a willingness to facilitate the course of justice and an acknowledgment of responsibility, by the offender.[1]
  2. [27]
    The utilitarian value has been described as the “advantages to the administration of justice that actually flow from a plea of guilty”.[2]  It has been noted that an early guilty plea is commonly recognised by considering a reduction starting at about one-third of the head sentence.[3]  A plea entered long after a person is first charged, and on the eve of the scheduled trial, provides less advantages than a plea been entered or indicated at an earlier point in time.[4]  This is one reason why “the timing of any plea of guilty has a large bearing on the credit that should be given a prisoner” and why:

“A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity”.[5]

  1. [28]
    The applicant entered guilty pleas to the 39 counts on 15 September 2020.  By any measure, it was a late plea.  It had utilitarian advantages, albeit less than an earlier plea would have entailed.
  2. [29]
    It also had subjective considerations relevant to sentence.
  3. [30]
    The learned sentencing judge noted:

“Whilst your plea has come late, I do accept that you have exhibited some remorse.  So much was evident when [one of the complainants] read his victim impact statement aloud.”

  1. [31]
    The recognition of “some remorse” was appropriately limited, given the applicant’s conduct before his late guilty plea.  There was no “spontaneous and immediate expression of remorse conducive to reform” and no “immediate co-operation with investigating police.”[6]  The applicant made no admissions to the investigating police.  Indeed, he denied the allegations to which he responded, and he disparaged the credit of the first three complainants.  He required the then five complainants to be cross-examined at committal.  He spared the sixth complainant, by agreeing to a registry committal.  He allowed the matter to proceed toward trial, so that each of the six complainants had to prepare to give evidence and anticipated doing so until the morning of the first allotted day.
  2. [32]
    In the sentencing remarks, the learned sentencing Judge dealt with the guilty pleas in the following way:

“Your trial was listed to commence on the 14th of September 2020.  You pleaded guilty on the morning of your trial to an indictment not significantly different from that which was to proceed to trial.  It is a late plea. However, it has meant that the six gentlemen who you sexually abused did not have to go through the further ordeal and trauma of giving evidence about that abuse and I take that into account in your favour.”

  1. [33]
    In drawing a conclusion about the effective head sentence to be imposed, the learned sentencing Judge expressed her conclusion in this way:

“Balancing all the necessary features up and approaching the exercise of my discretion in an integrated way, I consider that the appropriate period of imprisonment which reflects your plea, the very serious nature of your offending, the profound effects that it has had on your victims and the need to strongly condemn your conduct on behalf of the community and to deter similar behaviour by others is 16 years imprisonment.”

  1. [34]
    In this way the learned sentencing Judge complied with the statutory requirement to take the guilty plea into account in imposing a sentence and to state in open Court that this had occurred.[7] These do not require a statement of the extent of the reduction for the plea, although this is now frequently done. A sentencing judge who reduces a sentence on this account must have in mind the sentence that would have been imposed in the absence of the guilty plea.
  2. [35]
    The learned sentencing Judge identified the practical consequence of the applicant’s guilty plea. The six complainants “did not have to go through the further ordeal and trauma of giving evidence” about the applicant’s sexual abuse. The plea was an acknowledgement of responsibility for the offending.[8] It also demonstrated a willingness, at a late stage, to facilitate the course of justice, saving the public the expense and inconvenience of a trial, anticipated to last three weeks. I do not adopt the applicant’s submission that the guilty plea was “of substantial assistance in the administration of justice.”

Consideration of the proposed second ground of appeal

  1. [36]
    With respect, the learned sentencing judge expressed her conclusions in a conventional manner consistent with the nature of the sentencing process as one of instinctive synthesis where the sentencing judge takes account of all the relevant factors to arrive at a single sentence.[9] There were aggravating as well as mitigating factors to consider. The effective head sentence and the date the applicant will be eligible to apply for parole are elements that make up that single sentence.[10] The decision not to make a serious violent offence declaration is also an element of the sentence, because, if made, it would have operated to alter the parole eligibility date.
  2. [37]
    Neither the sentence imposed, nor the express reasoning that led to its formulation, give any cause to conclude that the learned sentencing judge erred in synthesising all the relevant elements, including the applicant’s guilty plea and the overall criminality of his offending.
  3. [38]
    In R v CCR [2021] QCA 119, this Court considered a submission that an expressly identified reduction in sentence by reference to a guilty plea was “substantially less than that which is the norm for pleas of guilty.”[11] The Court explained that such circumstances did not displace what was said by Fraser JA in R v Coutts [2016] QCA 206 at [4] about a submission that a plea of guilty had been given insufficient weight:

“The weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of the sentencing discretion. This Court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence”.[12]

  1. [39]
    As in CCR and in Coutts, the proposed second ground of appeal concerns the weight given to the guilty plea. In the circumstances, it is not a viable ground of appeal.

Manifestly excessive

  1. [40]
    Although the applicant maintained the proposed first ground of appeal that the sentence was manifestly excessive, the submissions for the applicant were confined to the proposed second ground. When pressed, Mr Weston submitted that, although the sentence was within the range open to the learned sentencing judge in the exercise of her Honour’s discretion, it could be considered manifestly excessive because there had been no moderation on account of the guilty plea. Once it is accepted that her Honour did take the guilty plea into account, this submission resolves into a repetition of the contention that there was a failure to give sufficient weight to the plea. For the reasons set out above, that contention must be rejected as a potential ground of appeal. The applicant’s counsel otherwise declined to be drawn into making oral submissions on the proposed first ground.
  1. [41]
    Mr Weston informed the Court that he could not advance the argument for the proposed first ground of appeal. He conceded that the global sentence of 16 years was “within range”, but submitted that it had to be “moderated” by the matters raised in support of the proposed second ground of appeal concerning the applicant’s guilty plea. He submitted this would be best achieved by moderating the parole eligibility date.

Consideration of the proposed first ground of appeal

  1. [42]
    The applicant’s head sentence and his related parole eligibility date are a consequence of the eight year sentences imposed for each of counts 5, 27 and 29 and the decision to require the applicant to serve the sentence for count 29 cumulatively on the (concurrent) sentences imposed for counts 5 and 27.
  2. [43]
    Each of these three most serious offences involved the applicant penetrating the anus of a different complainant with his penis.
    1. (a)
      In count 5, the complainant was 14 years old when the applicant invited him on his boat and plied him with alcohol until tipsy. After the complainant lay down in the cabin, the applicant removed his clothing and told him to lie on his stomach. The applicant then inserted his penis into the complainant’s anus, causing a lot of pain. The complainant yelled for the applicant to stop. The complainant later saw blood in his underwear. This offence was preceded by two and followed by two charged counts of indecent dealing with the same complainant.
    2. (b)
      In count 27, the complainant was 15 when, after sharing drinks on a rural property, the applicant retired to bed on a double mattress with the complainant. The applicant persisted with anal penetration, despite his victim’s protests that it was hurting. The applicant committed three offences of indecent treatment of the complainant immediately before the carnal knowledge and another immediately afterwards.
    3. (c)
      In count 29, the then 16 year old complainant was asleep, after being served drinks by the applicant on a rural property. The applicant had told him he had forgotten to bring a sleeping bag and so the two would have to share a double bed in a cottage. He awoke to the applicant anally penetrating him with his penis. When he tried to move away, the applicant told him to wait. The applicant persisted until he ejaculated in the complainant’s anus. The complainant was extremely sore and later saw blood in his underwear. The following morning, the applicant fired a threatening gunshot before telling the complainant “next time, I won’t miss … doing what you’re told is your best option”.
  3. [44]
    Only the third of these offences was rape. The criminal law prevailing prior to 1991 classified anal intercourse with a child under 16 as carnal knowledge against the order of nature. Under current law, counts 5 and 27 would be rapes, as would Count 1. The learned sentencing judge was bound to apply the law, including the relevant maximum penalties, that prevailed at the time of each offence. This meant that the count 29 rape offence was more serious than count 5 or 27, merely by consideration of its maximum penalty of life imprisonment, compared with 14 years for each of the earlier carnal knowledge offences. It also had the consequence that the maximum sentence of three years was imposed for count 1.
  4. [45]
    However, the sentencing principles to be applied by the learned sentencing judge were those under the present law. This meant, as her Honour acknowledged, that:

“I must have primary regard to the effect of the offences on each of the complainants, their ages when you offended against them, the nature of your offending including whether any physical harm or threat of harm was made, the need to protect children from the risk of you reoffending, any relationship that existed between you and the complainants, the need to deter similar behaviour by others in order to protect children, the prospects of your rehabilitation including the availability of medical or psychiatric treatment to cause you to behave in a way acceptable to the community, your antecedents and age and any remorse that you have evidenced.”

  1. [46]
    At the sentencing hearing, the Crown tendered victim impact statements from five of the complainants. One read his statement to the court. Each described the devastating and continuing effects of the offending on the complainant. No submission was put at the sentencing hearing, or in this application, to diminish the account of any complainant.
  2. [47]
    The learned sentencing judge accepted the relevance of the applicant’s age.
  3. [48]
    Her Honour did not accept the applicant’s submission at sentence that an absence of offending by the applicant since November 2006 was evidence of rehabilitation. Her Honour explained:

“Whilst there is no evidence that you have reoffended in the last 14 years, I do not consider that from that fact alone I could be satisfied that you have rehabilitated and present as a low risk of reoffending. Your predatory conduct towards these six young boys over some 30 years for your own sexual gratification suggests that you have a sexual deviancy.

No psychiatric report has been placed before me where a proper consideration of your risk of reoffending has been assessed. Further, no submission has been directed to any treatment that you have received in relation to whatever deviancy it is that you have. In the absence of any such evidence and given the proliferation of your offending, I cannot be satisfied that you have rehabilitated or that you are not a danger of reoffending. There was a period of time of more than a decade between the offending involving [two of the complainants]. That lengthy period of time does not demonstrate that you had rehabilitated as you reoffended against [the second of these complainants].

I simply do not have sufficient material before me to make any assessment of your prospects of rehabilitation. That really depends upon a psychiatric assessment of you.

Your advanced age of 74 and the absence of any psychiatric material addressing your risk of reoffending means that I cannot be satisfied at all as to the level of risk you pose. Your advanced age tends against you being a risk to children on the one hand, although your untreated deviant sexual tendencies on which you acted in a predatory manner over many years tends towards you being a risk.”

  1. [49]
    There was a significant pattern to the applicant’s offending. He met each complainant as an adolescent boy aged between 11 and 16 years through their families or mutual friends. He arranged for each to spend time with him, on his boat or in relatively remote locations, where often the boy was in his care. He supplied them with alcohol, before sexually abusing them.
  2. [50]
    Between the first offence and the last, there were two significant periods without offending by the applicant: the six years from January 1976 to May 1982; and the 12 years from January 1988 to September 2000. The last of applicant’s offences was committed between 31 December 2001 and 21 November 2006. In 2007, the applicant moved to South Australia in retirement. In 2009, he moved to Cambodia, establishing himself in a village. He seems to have returned to live in Adelaide, perhaps after a collapse requiring hospitalisation in 2016.
  3. [51]
    These circumstances justified the learned sentencing judge’s reluctance to regard the absence of an offence since November 2006 as evidence of rehabilitation or, as the applicant’s counsel at sentence put it “The demonstration of the defendant ceasing offending of his own volition”. The learned sentencing judge did not regard the absence of an offence in the past 14 years as a basis to reduce the need for individual deterrence to be reflected in the sentence. Nor did her Honour find it diminished the need to protect children from the risk of the applicant reoffending.
  4. [52]
    Contrary to the submissions made for the applicant at the sentencing hearing (see [14] above), the upper and lower limits of the guidance offered by the Crown to the learned sentencing judge was established by cases where there were guilty pleas, as well as those for convictions after trials.
  5. [53]
    The sentences in R v Pearce [1997] QCA 303 (nine years imprisonment) and R v H [1999] QCA 465 (seven years), said to be comparable to the first group of offences, were imposed for convictions entered on guilty pleas. The offender Pearce was aged 76 at sentence. He had committed 32 sexual offences against children under 16 over 21 years when aged between 49 and 70.[13] In R v H, the defendant pleaded guilty to three counts of indecent treatment of a child under 14, four of indecent treatment of a child under 16 and two counts of sodomy. He was 55 at sentence. He had been 45 when he committed the indecent treatment and the first sodomy offence against a nine year old boy, and 49 when the balance of the offences were committed against the same boy, by then aged 13.
  6. [54]
    The sentence in R v Wilson [1990] QSCCCA 299 (eight years) followed a trial. It was for five counts of indecent dealing and three of sodomy, all involving a single complainant aged nine or 10 years. Wilson was 35 at sentence and had committed the offences while in a relationship with the sister of the complainant’s mother.
  7. [55]
    Of the comparable cases for the second group of the applicant’s offences, R v Hutchinson [2010] QCA 22 (seven years) followed a guilty plea on the morning of the trial, while R v F [1996] QCA 490 (8.5 years) and R v GBF [2019] QCA 4 (nine years) were imposed after conviction at trial.
  8. [56]
    In Hutchinson, the sentence of seven years was for a single count of rape, committed at 36 years of age against an 18 year old complainant. The 8.5 year head sentence in R v F was for one count of rape, six counts of indecent dealing and two of wilful exposure to indecent material each involving the 13 year daughter of his partner, and for two counts of exposing two other children to indecent material. In R v GBF, after a trial, the defendant was convicted of three counts of rape and three of indecent dealing against his half-sister, then aged 13 and 14, over a nine month period when he was aged 33 and 34. This Court concluded “that a sentence of nine years imprisonment, to reflect the overall totality of the applicant's criminal conduct, was well within the bounds of a permissible exercise of the sentencing discretion.”
  9. [57]
    In the more recent decision in R v EP [2020] QCA 109, cited by the respondent in this appeal, this Court did not disturb a nine year sentence after a guilty plea for four counts of rape and one indecent dealing against a single complainant under 12 in the care of the offender.
  1. [58]
    The sentence imposed for count 29 is the same as that for each of counts 5 and 27, notwithstanding the much higher maximum penalty for rape. Although the learned sentencing judge did not express it, her Honour appears to have moderated the sentence for count 29 taking into account that it would be cumulative on the sentences for counts 5 and 27, to avoid a crushing effect. Her Honour’s refusal to make a serious violent offence declaration may also have been influenced by a concern to moderate the overall effect of the sentence.
  1. [59]
    The effective 16 year head sentence is within the range of sentences that could be imposed for the applicant’s offending conduct. With respect, it could correctly be identified as at or towards the top end of the relevant yardsticks for offending of this kind where a guilty plea is entered. A comparison with R v CCR, where a guilty plea for 26 offences against four complainants, including two of maintaining and two of rape, resulted in a head sentence of 14 years imprisonment, might indicate as much. However, the comparison is complicated by the maintaining offences being declared serious violent offences. The defendant in CCR would not be eligible for parole until more than three years later than the applicant here, notwithstanding his shorter head sentence.
  2. [60]
    In all the circumstances, I am not persuaded that the sentence is manifestly excessive.

Disposition

  1. [61]
    For the above reasons, I would refuse leave to appeal the sentence imposed by the learned sentencing judge.

Footnotes

[1] Siganto v The Queen (1998) 194 CLR 656, 663-664 [22] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[2] R v Dib [2003] NSWCCA 117 at [4] (Hodgson JA).

[3] R v Ungvari [2010] QCA 134 at [30] (White JA).

[4] R v Dib [2003] NSWCCA 117 at [5] (Hodgson JA).

[5] Cameron v The Queen (2002) 209 CLR 339, 359 [65](4) (Kirby J), citing R v Holder [1983] 3 NSWLR 245; R v Bulger [1990] 2 Qd R 559; and cf R v Dodge (1988) 34 A Crim R 325 at 331; R v Heferen (1999) 106 A Crim R 89 at 92 [12]; R v Thomson (2000) 49 NSWLR 383 at 414-415 [132].

[6] Cameron v The Queen (2002) 209 CLR 339, 359 [65](4) (Kirby J), citing eg, R v James and Sharman (1913) 9 Cr App R 142; R v Caust [1936] SASR 170; R v Shannon (1979) 21 SASR 442 at 450; Heferen v The Queen (1999) 106 A Crim R 89 at 92 [12].

[7] Penalties and Sentences Act 1992 (Qld), s 13(1).

[8] Cameron v The Queen (2002) 209 CLR 339 at 343 [14] (Gaudron, Gummow and Callinan JJ).

[9] Markarian v The Queen (2005) 228 CLR 357 at [27] and [37]; Barbaro v The Queen (2014) 253 CLR 58 at [34].

[10] R v MCW [2018] QCA 241 at [28] (Mullins J, as her Honour then was).

[11] R v CCR [2021] QCA 119 at [21].

[12]  citing: R v Major ex parte A-G (Qld) [2011] QCA 210, R v Tout [2012] QCA 296 at [7] and the decisions there cited; and R v Buckman [2016] QCA 176 at [8].

[13]  Pearce was also sentenced for six Commonwealth offences: two acts of indecency with a person under 16 in Thailand; and four charges of possession of child abuse photographs.

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Editorial Notes

  • Published Case Name:

    R v Pike

  • Shortened Case Name:

    R v Pike

  • MNC:

    [2021] QCA 285

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Bradley J

  • Date:

    17 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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