R v SDZ[2023] QCA 30

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the reasons of Martin SJA.
2. [2]
   GOTTERSON AJA:  I agree with the reasons of Martin SJA for the refusal of leave to appeal.
3. [3]
   MARTIN SJA:  The applicant seeks leave to appeal against a sentence imposed by Judge Morzone KC on 25 March 2022.  At the conclusion of the hearing of the application for leave, the Court ordered that the application be dismissed.  These are my reasons for joining in that order.

The offences and the sentences which were imposed

4. [4]
   The applicant pleaded guilty to a number of charges.  They concerned offences committed by the applicant as a minor and as an adult.  Those charges, together with the sentences imposed, are briefly set out below:

5. [5]
   As far as they are necessary to recount, the facts of the offending are as follows:

   3. (a)
      the applicant and the complainant are cousins;

   3. (b)
      the applicant is about eight years older than the complainant;

   3. (c)
      the offending which occurred when both the applicant and the complainant were children is as follows:

   3. (i)
      Count 1 – the applicant lured the complainant behind a garden shed and got her to suck his penis – she was six, he was about 14 years old;

   3. (ii)
      Count 2 – the applicant penetrated the complainant’s vagina with his finger, after having asked her to sit on top of him on a bed – she was seven, he was about 15 years old;

   3. (iii)
      Count 3 – the applicant picked up the complainant, had her lie on top of him while he pressed his penis against her, through her clothes – she was eight, he was about 16 years old; and

   3. (iv)
      Count 5 – the applicant pushed the complainant against a wall, kissed her with his tongue and pushed his erect penis against her, through her clothes – she was nine, he was about 17 years old; and

   3. (d)
      the adult offending occurred after a house party which they had both attended.  They were in a car when he forced his penis into her mouth (Count 7) and then forced his penis into her vagina (Count 8) – she was 20, he was 27 years old.
6. [6]
   The relevant facts were set out in an agreed Statement of Facts and the complainant provided a victim impact statement.  The applicant had no criminal history.
7. [7]
   The learned sentencing judge ordered that the sentences for Counts 1, 2, 3 and 5 be served concurrently, that the sentences for Counts 7 and 8 be served concurrently, and that the sentence for Count 7 be served cumulatively upon the sentence for Count 1.  Therefore, the total term of imprisonment imposed was seven years and six months.  A parole eligibility date of 23 September 2024 was set, which was equivalent to one-third of the total term of imprisonment.

Grounds of Appeal

8. [8]
   At the hearing of the application, the applicant was given leave to amend the grounds of appeal to this effect:

   1. (a)
      the sentence was visited [sic] by error because the applicant’s age at the time of committing counts 1 and 2 was misstated;
   2. (b)
      the sentence was visited [sic] by error because the applicable range for juvenile rape offending was misrepresented; and
   3. (c)
      the sentence was manifestly excessive in all the circumstances.

Ground 1 – was the applicant’s age misstated?

9. [9]
   Count 1 of the indictment relevantly provides: “That on a date unknown between the first day of January 2005 and the fifteenth day of November 2007 [the applicant raped the complainant]”.
10. [10]
    Count 2 of the indictment relevantly provides: “That on a date unknown between the first day of March 2006 and the thirtieth day of April 2008 [the applicant raped the complainant]”.
11. [11]
    In the agreed Statement of Facts there is a difference in the date ranges for those two counts.
12. [12]
    Count 1 is said to have occurred on an unknown date between 15 November 2005 and 30 March 2006 when the “complainant was around 6 years old; the defendant was around 14 years old.”
13. [13]
    Count 2 is said to have occurred on an unknown date between 1 March 2006 and 5 April 2008 when the “complainant was around 7 years old and in grade 3; the defendant was around 15 years old.”
14. [14]
    In the applicant’s submissions before this Court, it was asserted that, before the sentencing judge, the prosecutor said that the applicant “was between 13 and 15 at the time of the indecent treatment offences and 15 at the time of the rape.”  That is not correct.  The prosecutor did say those words but not with respect to this applicant.  The prosecutor was providing the sentencing judge with a summary of the facts in R v SBR^[1] and was referring to the age of the defendant in that case.
15. [15]
    The prosecutor did not refer to the age of the applicant at the time of the rape which constituted Count 1, but did, when referring to Count 2 say that the applicant was 15 years old.
16. [16]
    In his remarks, the sentencing judge said that the defendant was 14 at the time of the rape constituting Count 1 and 15 at the time of the rape constituting Count 2.
17. [17]
    The argument advanced on behalf of the applicant was that:

    1. (a)
       he was aged under 14 years for some part of each of the offending periods relating to Counts 1 and 2;
    2. (b)
       that s 29(2) of the Criminal Code provides that a person under the age of 14 is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission the person had the capacity to know that the person ought not do that act or make that omission; and
    3. (c)
       by pleading guilty, the applicant saved the prosecution from having to demonstrate that the applicant had the relevant capacity during the period for which he was under 14 years.
18. [18]
    The immediate answer to that argument is that it does not assert an error on the part of the sentencing judge, rather, it identifies something which might be considered in mitigation of penalty.
19. [19]
    In any event, the prosecution did not have to demonstrate that the applicant had the relevant capacity “during the period for which he was under 14 years”.  Section 29(2) requires consideration of capacity at the time the offence was committed.
20. [20]
    The applicant agreed with the Statement of Facts.  There were no submissions made by the applicant before the sentencing judge about the applicant’s age and criminal responsibility.  The applicant agreed that he was “around 14” at the time of Count 1 and “around 15” at the time of Count 2.  The argument about criminal responsibility cannot apply with respect to Count 2.  Any uncertainty about whether he was under 14 years of age at the time is balanced by his plea of guilty which is a plea to all elements which must include criminal responsibility for the first rape.

Ground 2 – was the relevant range misstated?

21. [21]
    The error contended for by the applicant is that the prosecutor, in his submissions on the range of sentences for the offences committed by the applicant as a juvenile, did not properly identify the “bottom of the range.”  It was argued that this carried particular significance because of the need to moderate the sentence for reasons of cumulation.
22. [22]
    Leave to appeal a sentence will not be granted simply because a prosecutor might have made inaccurate or incomplete submissions about the types of sentences imposed for like offences.  An applicant must demonstrate an error on the part of the sentencing judge.  That was not done in this case.  While I do not accept that the prosecutor misrepresented “the applicable range for juvenile rape offending,” the sentencing judge demonstrated, through his remarks, that he was well aware of the relevant principles.  He said, for example, “ … I have to consider your age at the time as a mitigating factor to work out the type of penalty and for how long.  As a child the rules are that non-custodial orders are better than detention at a children’s prison effectively.  The idea is to help children to reintegrate in our community, provide rehabilitation, assisted by family, and opportunities for educational programs and employment, and that is why detention as a child is imposed as a last resort and for the shortest possible time.”

Ground 3 – were the sentences manifestly excessive and should the concession by counsel have an effect?

23. [23]
    At the sentencing hearing, the prosecutor submitted that the appropriate sentence was one which consisted of two years imprisonment for the offending committed while the applicant was a child, cumulative upon the term of six years imprisonment for the offending as an adult.  Counsel for the applicant told the sentencing judge: “I should indicate to your Honour at this stage, I wasn’t seriously going to agitate that eight years imprisonment wasn’t within range.  It might go slightly lower depending upon your Honour’s hearing my sentencing submissions ….”
24. [24]
    The applicant referred to R v Walsh^[2] and the respondent referred to R v Flew^[3] as support for the proposition that, where counsel at first instance conceded the appropriateness of the sentence imposed, an applicant seeking to demonstrate manifest excess bears a heavy burden.  After announcing our decision, the court sought further submissions about the effect of the decision in R v Volkov^[4].
25. [25]
    In R v Flew Keane JA (with whom Fraser JA and Atkinson J agreed) said:

3. “[28]
   The circumstance that the sentence which was imposed accorded with the submission put to the sentencing judge on the offender's behalf means that an assertion that the sentence imposed was manifestly excessive could be upheld only in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance. No such circumstances appear in this case.”

26. [26]
    In R v Walsh Keane JA (with whom de Jersey CJ and White AJA agreed) said:

3. “[23]
   The imposition of a just sentence is, of course, the responsibility of the sentencing judge; but where the sentence which is imposed accords with the position taken by the offender before the sentencing judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain. If the sentence were indeed manifestly excessive then the applicant would not have agreed, by his Counsel, that it might properly be imposed. The applicant's submission is one to which effect could be given only in special circumstances sufficient to warrant the conclusion that the applicant should not be regarded as bound by the conduct of his case in the court below. No such circumstances are apparent here.” (emphasis in the original)

27. [27]
    Those remarks of Keane JA were referred to by Sofronoff P (with whom Morrison and McMurdo JJA agreed) in R v Civcija^[5] where he said:

3. “[23]
   I respectfully agree. However, if on the facts of a particular case an applicant’s submissions on sentence were wrong when made then, despite an applicant’s instructions to make those submissions and however forensically powerful it might be to contend that an applicant only got what he or she asked for, this Court would remain obliged to impose the sentence that ought to have been imposed as a matter of law.”

28. [28]
    In R v Volkov, McMurdo JA (with whom Fraser JA and Williams J agreed) referred to Keane JA’s statement in R v Flew and considered it in the light of, among other things, the High Court’s decision in Barbaro v The Queen^[6].  His Honour said:

3. “[8]
   Sentencing submissions of this kind do not have the effect of displacing or qualifying the applicable law. They neither expand nor confine the judge’s discretionary power. Where a specific error of a sentencing judge can be identified, this Court is obliged to re-sentence unless, in its own judgment, it agrees with the order of the judge. In a case where no specific error can be identified, but the sentence is manifestly excessive such that there must have been an error by the judge, and “a substantial wrong has in fact occurred,” this Court must resentence the offender. Just as the exercise of the sentencing discretion cannot be qualified by sentencing submissions of this kind, a sentence which betrays some misapplication of principle does not cease to be so for the fact that the error has been contributed to by an errant submission to the judge. It was such a case to which Sofronoff P was referring in R v Civcija where he said:

“However, if on the facts of a particular case an applicant’s submissions on sentence were wrong when made then, despite an applicant’s instructions to make those submissions and however forensically powerful it might be to contend that an applicant only got what he or she asked for, this Court would remain obliged to impose the sentence that ought to have been imposed as a matter of law.”

3. [9]
   In the present case, the respondent acknowledges the authority of that statement, but submits that the concession made by the applicant’s counsel should matter in the exercise of this Court’s discretion. It is said that the submission before the sentencing judge, agreeing to the outcome which is now challenged, remains “a matter of weight in considering a discretionary application by this Court for leave to appeal ….” That submission cannot be accepted.

3. [10]
   One further matter should be noted. It is that a submission by a prosecutor as to the appropriate sentence might matter in an appeal by the Attorney-General, where different considerations apply and there is the so-called “residual discretion” involved.

3. [11]
   It follows that the concession by the applicant’s counsel before the sentencing judge has no bearing upon whether the sentence should be held to have been manifestly excessive.” (citations omitted)

29. [29]
    At the hearing of this application, both counsel proceeded on the basis that the statements by Keane JA should be applied and that the applicant bore a heavier burden because of the submissions made to the sentencing judge.  After Volkov it is clear that an erroneous submission by the defendant’s counsel as to the range of sentences which might apply does not increase the burden on an applicant for leave.  If the sentence imposed was manifestly excessive then the consequence of that remains the same.  The mere fact that, at first instance, it was conceded that the sentence imposed was appropriate does not preclude this court from considering the sentence and whether it demonstrated error nor does it make the task of an applicant any greater than it would have been in the absence of such a submission.
30. [30]
    The sentencing judge was referred to, and considered, a number of relevant decisions of this Court which demonstrated the types of sentences which have been imposed in cases of this kind.
31. [31]
    The principle to be applied when sentencing someone in the applicant’s position was considered in R v OQ^[7]:

3. “[20]
   The applicant stood to be sentenced as an adult – but he could not be ordered to serve a term of imprisonment longer than the period of detention that could have been imposed if he had been sentenced as a child, and regard had to be paid to the sentence that might have been imposed on him if he had been sentenced as a child. For example, in a case where, had the offender been sentenced as a child, he would not have been placed in custody (“in detention”), the court would have to recognise that circumstance. In R v PGW the Chief Justice (with whom McPherson JA and Mullins J agreed) said of the requirement to “have regard to” the sentence that might have been imposed had the offender been sentenced as a child –

‘That does not tie the Court to that sentence. Circumstances may warrant imposing a sterner penalty than would have been visited upon the child.’” (citations omitted)

32. [32]
    The examination in R v LAL^[8] of the broad range of sentences imposed for offences committed by a juvenile shows that non-custodial sentences have been imposed for sexual offences.  That is consistent with the provisions of the Youth Justice Act 1992.  But higher sentences may be imposed if the circumstances require it.  This was such a case.
33. [33]
    In R v JJ; Ex parte Attorney-General (Qld)^[9] the attorney-general sought to appeal a sentence of two years imprisonment for the rape (vaginal intercourse) by a 14-year-old of his nine- or 10-year-old sister.  The sentence was increased to three years and was cumulative upon other sentences.
34. [34]
    In R v OQ^[10] the applicant was charged with 14 counts of indecent treatment of a child under 16, with the circumstance of aggravation that the child was under 12, and one count of rape (vaginal penetration).  He pleaded guilty to eleven of the indecent treatment charges, and went to trial on the rape charge and three of the indecent treatment charges.  He was found guilty of the rape and one of the indecent treatment charges.  He was sentenced as a juvenile.  The complainant was aged between four and seven years when the offences were committed.  He was sentenced to two and half year’s imprisonment for the rape and 18 months imprisonment for each of the indecent treatment charges.
35. [35]
    To succeed on this type of application, an applicant must establish that the sentence imposed was outside the range which is demonstrated by a consideration of the sentences imposed in similar cases.  It is not enough just to show that the sentence was severe or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed.^[11]  The consideration of other sentences in R v OQ and in R v LAL (which were more serious than this case) shows that the sentence of 18 months imprisonment for Count 1 was not manifestly excessive.
36. [36]
    As for the sentence of six years on each of the rapes committed when both the applicant and the complainant were adults – a consideration of comparable authorities^[12] supports a conclusion that, after taking into account that it was cumulative on the other sentences, a sentence of six year’s imprisonment was within a sound exercise of the sentencing discretion.