R v Norgate[2023] QCA 231

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Boddice JA and the orders proposed by his Honour.

2. [2]
   BODDICE JA:  On 13 April 2023, the applicant pleaded guilty to one count of grooming.  He was sentenced to three years imprisonment, to be served cumulatively on the balances of suspended sentences of imprisonment, which were activated as a consequence of the applicant’s conviction of the grooming offence, committed during their operational periods.
3. [3]
   A period of 334 days in pre-sentence custody was deemed time already served under the sentence for grooming.  A parole eligibility date was fixed at 12 November 2023.
4. [4]
   The applicant seeks leave to appeal his sentence.  Should leave be granted, two grounds are relied upon.  First, that the sentencing judge erred by not applying the totality principle.  Second, that the sentence imposed was manifestly excessive.

Background

5. [5]
   The applicant was born in 1997.  He was aged 23 at the time of the commission of the offence and aged 25 at sentence.
6. [6]
   The applicant had a relevant criminal history.  It included previous convictions for trespass, wearing uniforms or colourable imitations of uniforms of officers, possession of weapons, breach of bail offences, sexual offences against children and using a carriage service to menace, harass or cause offence.  The sexual offences were the subject of the suspended sentences activated on his conviction and sentence for the grooming offence.
7. [7]
   The applicant had a significantly disadvantaged background, growing up in a family where he was exposed to domestic violence.  The applicant had significant intellectual disabilities, including childhood autism and mild mental retardation.  His history included poor emotional regulation and numeracy and literacy skills that were barely functioning.  He required special education at school.
8. [8]
   The applicant also suffers from epilepsy and has a past psychiatric history, including treatment for having heard voices.  Drugs and alcohol have also been a feature in his life.  He has a history of expressing violent attitudes and fantasies to those who have assessed him in the course of mental assessments.  The applicant requires NDIS assistance in terms of psychology, education, and speech, as well as stable and supportive accommodation.
9. [9]
   At the time of the commission of the grooming offence, the applicant was, in addition to being subject to the operational period for the suspended sentences, on a good behaviour bond and subject to a 12-month probation order, imposed on 4 September 2020 for offences including failing to comply with reporting conditions associated with those prior sexual offences.

Suspended sentences

10. [10]
    The suspended sentences were imposed on 26 March 2020 after the applicant pleaded guilty to a variety of offending, including one count of taking a child under 16 for immoral purposes, under 12; two counts of attempted indecent treatment of a child under 16, under 12; one count of indecent treatment of a child under 16, under 12; three charges of trespass; and one charge of unlawful possession of weapons.
11. [11]
    The sexual offences were committed when the applicant was 21 years of age.  The complainants were three children.  All of the offending occurred in the context of their attendance at school.  Each trespass offence was relevant to that sexual offending.
12. [12]
    The first complainant, a 10-year-old child, was accosted by the applicant whilst walking to school.  The applicant encouraged the child to enter a toilet block, near some shops.  After doing so, he locked the child in the cubicle.  The applicant then knelt down and directed the child to pull his pants down.  The child resisted and although the applicant encouraged him to come back, the child refused to do so.
13. [13]
    The other two complainants were four and five years of age.  They were accosted by the applicant when they travelled from their prep class to the school toilet block.  The applicant was standing inside a cubicle, by himself.  The applicant took the 4-year-old child into a separate cubicle, pulled down his shorts and underwear and grabbed his penis, pulling back the foreskin in order to examine the penis head.  These events occurred within observation of the 5-year-old child.  The applicant then approached the 5-year-old child who pulled down his shorts, but not his underwear.  The child said he did not like it.  Both left the toilet block.
14. [14]
    Two days prior to the latter offences, the applicant had been observed on the school premises without permission.  That formed the basis for the first offence of trespass.  On the following day, the applicant was again seen in the school grounds.  He was dressed in a black shirt which had the words “Security” written upon it.  He appeared to have a walkie-talkie.  The applicant gave a false explanation for his presence, namely, a pretext about enrolling his daughter at school.  That event was the second offence of trespass.  The events involving the two children, represented the third offence of trespass.  Again, the applicant was on the school grounds without authority.
15. [15]
    Relevantly, the applicant was sentenced to separate sentences of four years imprisonment for the indecent treatment count concerning the 4-year-old child and three years imprisonment for each of the remaining sexual offences which, after some 406 days in pre-sentence custody were declared as time already served under the sentences, were suspended to, and including, 13 February 2023.
16. [16]
    At the time, the sentencing judge observed that the applicant had a criminal history containing some concerning entries, including entries for offences of possessing or acquiring restricted items, wearing a uniform or colourable imitation of uniform of a police officer and possession of weapons.
17. [17]
    Further, although the applicant had previously been sentenced to probation, that probation had not been properly commenced due to his re-offending within a short period of time.  His initial assessment had noted he had high-risk needs in accommodation, employment, substance abuse, mental health and general health.

Grooming offence

18. [18]
    The complainant was a 12-year-old boy who lived next door to the applicant.  Despite being warned off contact with that child, the applicant, in a space of weeks, befriended him, spoke to him about sex and drugs and ultimately enticed him into the applicant’s unit where the applicant exposed himself and offered money to the complainant for oral sex.
19. [19]
    This offending occurred but weeks after the applicant’s release from prison.  The offending had a profound effect on the child complainant.

Sentencing remarks

20. [20]
    In sentencing the applicant for the offence of grooming, the sentencing judge observed that the applicant was “a true predator”, who was subject to suspended sentences for targeting boys from the local primary school.  His method included dressing like a security officer and loitering in the school grounds.  His physical acts against those victims included pulling down the pants of two boys and attempting to do so for another.
21. [21]
    The sentencing judge observed that whilst the victim for the grooming offence had not been touched, he was in very real danger and the applicant’s intentions were very clear as to performing oral sex upon the victim if he had accepted the applicant’s proposal.
22. [22]
    The sentencing judge observed that the offence was committed 12 months after the applicant’s sentence and release for prior sexual offences against the three earlier children and that during that 12-month period, the applicant had continued to breach reporting conditions by making contact with a 17-year-old girl.  He had commenced the grooming offence within weeks of his last release from custody.
23. [23]
    The sentencing judge found that whilst the applicant was to be sentenced for the new offending, not his past convictions, the applicant’s entrenched propensity to target young boys marked him as a clear and present danger to the community.
24. [24]
    The sentencing judge recorded the following matters in mitigation: the applicant pleaded guilty; the applicant was only 23 when he committed the offence; the applicant had undertaken courses in custody; the applicant had a prejudicial upbringing; the applicant had a combination of intellectual and mental disadvantages; and that the applicant had never lived alone, always requiring a carer.
25. [25]
    The sentencing judge concluded:

“At the same time, you have displayed an inherent cunning in the pursuit of children.  It is clear you have a preoccupation with sex as well as weapons, and have previously fantasised about violence.  You have been resistant to help.  You have been unwilling to comply with Court orders like probation, suspended sentence or the reporting conditions.

The primary purpose of today’s sentence must be the protection of children within the limitation of a sentence proportionate to your criminal conduct.  It seems the only way to protect children from you is to lock you up.  The maximum penalty today available for the worst example of the offending is five years’ imprisonment.  I take into account that this boy was not touched, but I am also mindful that the grooming was ultimately brought to an end by circumstances beyond your control.”

26. [26]
    The sentencing judge observed that the applicant had been in remand custody for 699 days, but that about half of that period was serving 12 months of a previous pre-existing sentence which had been suspended, but then activated.  Accordingly, the sentencing judge declared only part of the time served in pre-sentence custody.
27. [27]
    The sentencing judge also recorded that as the applicant was to be sentenced for re-offending during the operational period of a suspended sentence for offending of the same kind, it warranted a cumulative order.
28. [28]
    The sentence of three years imprisonment for the grooming offence was ordered to be served cumulatively on the balance of the activated suspended sentences.

Totality

29. [29]
    The applicant submits that the sentencing judge erred in imposing a sentence of three years imprisonment for the grooming offence, to be served cumulatively on the activated balances of the suspended sentences, as such a sentence failed to have regard to the principle of totality.  The applicant relies on the absence of any specific discussion about totality in the sentencing remarks in support of that submission.
30. [30]
    The respondent accepts that the sentence of three years imprisonment does not contain any amelioration for totality, but submits that having regard to the applicant’s disturbing past criminal history, it was open to the sentencing judge not to ameliorate the sentence, even though it was to be served cumulatively.  The respondent submits there are occasions where the protection of the public warrants a conclusion that, in all of the circumstances, there be no amelioration.
31. [31]
    Whilst the principle of totality arises for consideration in the context of overlapping sentences or the imposition of sentences to be served cumulatively, those circumstances of themselves do not mandate that there must be a moderation of a sentence.^[1]
32. [32]
    The principle of totality requires that in undertaking a sentencing process, ultimate regard is to be had to the effect of the overall sentence.  The totality principle necessitates that a judge “look at the totality of the criminal behaviour constituted by all of the offences”.^[2]
33. [33]
    As Fraser JA observed in R v Russell:^[3]

“The totality principle is designed to ensure that an offender is not unjustly burdened by being required to serve an aggregate term of imprisonment that is more severe than may fairly be considered to be merited by the totality of the offender’s criminality in all of the offences for which the component sentences are imposed.”

34. [34]
    Whilst it may be accepted that the protection of the public, as well as principles of specific deterrence, may support a sentence which does not involve ameliorating the consequence of cumulative sentences, the application of the totality principle requires that a sentencing judge, even in that circumstance, consider the overall effect of the sentence to ensure it is a just and appropriate sentence for the offender’s criminality.
35. [35]
    A perusal of the sentencing judge’s remarks reveals no such consideration in the instant case.  Further, a sentence of three years imprisonment for grooming, to be served cumulatively on activated suspended sentences, resulting in an overall sentence of five years 10 months imprisonment, was not a just and appropriate sentence for the applicant’s overall criminality.
36. [36]
    The grooming did not involve any physical touching or sexual acts.  There was a plea of guilty.  That sentence was outside comparable yardsticks.^[4]  Whilst those yardsticks did not involve offenders with a criminal history as disturbing as the applicant, Goodall’s criminality involved mutual sexual acts via video with the child complainant for which he received, on a re-sentence by this Court, two years imprisonment, suspended after two months.  Espray was sentenced to 11 months imprisonment followed by a 2-year probation period for offending that included the exchange of photographs of genitals.
37. [37]
    Further, R v Hilsley^[5] involved two counts of grooming, one for a period extending over 11 months, involving persistent attempts to prostitute two young girls, by an offender who had been previously sentenced to six years imprisonment for prostituting young girls.  Hilsley received a head sentence of three years imprisonment on the grooming counts and lesser concurrent sentences for two counts of indecent treatment of a child.

Conclusion

38. [38]
    The applicant has established error.  There was a failure to have regard to totality in imposing the sentence of three years for grooming, to be served cumulatively on the activated suspended sentences.
39. [39]
    This conclusion renders it unnecessary to consider whether the sentence imposed was manifestly excessive, in all the circumstances.

Re-sentence

40. [40]
    In re-exercising the sentencing discretion, it is relevant to have regard to the fact that whilst the applicant’s behaviour involved a persistent example of grooming, undertaken but weeks after his release from custody, there were no sexual acts undertaken by the 12-year-old boy.  As against that, it is a significant aggravating feature that the applicant’s offending was in breach of court orders.  Further, whilst he has significant intellectual and mental disabilities, they are not mitigating factors as those very conditions increase his risk to children.
41. [41]
    Allowing for the applicant’s plea of guilty and for the fact that the sentence for the grooming offence is properly to be ordered to be served cumulatively on the balance of the suspended sentences activated in full, I would re-exercise the sentencing discretion by varying the applicant’s sentence of three years imprisonment to two years imprisonment.
42. [42]
    No error is shown in any of the other sentences imposed by the sentencing judge.  I would confirm each of those sentences.
43. [43]
    There is also no error shown in the exercise of the sentencing judge’s discretion in respect of the declaration of pre-sentence custody and in the affixing of the parole eligibility date.  I would confirm each.

Orders

44. [44]
    I would order:

1. Leave to appeal be granted.
2. The appeal be allowed.
3. The sentence imposed for the count on indictment 669 of 2023 be varied from three years to two years imprisonment.
4. The orders of the sentencing judge otherwise be confirmed.

45. [45]
    MARTIN SJA:  I agree with the reasons of Boddice JA and the orders proposed by his Honour.