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TJS v Director of Public Prosecutions[2024] QDC 122

TJS v Director of Public Prosecutions[2024] QDC 122

DISTRICT COURT OF QUEENSLAND

CITATION:

TJS v Director of Public Prosecutions [2024] QDC 122

PARTIES:

TJS

(Appellant)

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(Respondent)

FILE NO:

165/24

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

7 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2024

JUDGE:

Farr SC DCJ

ORDER:

  1. 1.
    Appeal allowed.
  1. 2.
    Sentences imposed in Magistrates Court at Brisbane be set aside in respect of each charge.
  1. 3.
    The appellant is re-sentenced as follows:
  1. Charge 1: nine months imprisonment
  1. Charge 2: six months imprisonment
  1. Charge 3: 12 months imprisonment
  1. Charge 4: six months imprisonment
  1. All terms of imprisonment are to be served concurrently. 
  1. Each term of imprisonment is suspended immediately with an operational period during which the appellant must not commit any other offence punishable by imprisonment for a period of nine months in respect of Charge 1, six months in respect of Charges 2 and 4 and 12 months in respect of Charge 3. 

CATCHWORDS:

CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant was convicted on his own pleas of guilty to two counts of penile intercourse with a child under 16 and two counts of indecent treatment of a child under 16 – where the appellant was sentenced to 15 months imprisonment on each count with each sentence to be suspended after the appellant had served a period of three months imprisonment with an operational period of 15 months – whether the sentences imposed were excessive

LEGISLATION:

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

CASES:

Forrest v Commissioner of Police [2017] QCA 132

R v BCX [2015] QCA 188

R v Lawley [2007] QCA 243

COUNSEL:

T Ryan KC for the Appellant

L Kerr, Legal Officer for the Respondent

SOLICITORS:

Taylor Rose Lawyers for the Appellant

Officer of the Director of Public Prosecutions (Qld) for the Respondent

  1. [1]
    This is an appeal against sentence pursuant to s. 222(2)(c) of the Justices Act 1886 (Qld).
  2. [2]
    The appellant was convicted upon his own pleas of guilty in the Magistrates Court at Brisbane on 22 January 2024 to four charges:
  1. 1.
    Charges 1 and 3: penile intercourse with a child under 16 on dates unknown between 1 January 2022 and 13 March 2022;
  1. 2.
    Charges 2 and 4: indecent treatment of a child under 16 on a date unknown between 6 February 2022 and 13 March 2022.
  1. [3]
    The appellant was initially sentenced to 15 months imprisonment on each count with a parole release date set after the appellant served three months actual imprisonment.  On 25 January 2024 the sentence hearing was re-opened[1] and the order for parole was vacated and substituted by an order that each sentence be suspended after the appellant had served a period of three months imprisonment.
  2. [4]
    Unfortunately, contrary to s. 144(5) of the Penalties and Sentences Act, the Magistrate failed to state an operational period during which the appellant must not commit another offence punishable by imprisonment if he was to avoid being dealt with under s. 146 for the suspended sentences.
  3. [5]
    Consequently, the sentence hearing was re-opened again on 24 July 2024 pursuant to s. 188 and an operational period of 15 months was imposed in respect of each sentence. 
  4. [6]
    I understand that the appellant spent one day in custody before the Supreme Court of Queensland ordered that he be released on bail until the outcome of this appeal was decided.

Relevant law

  1. [7]
    Pursuant to s. 223(1) of the Justices Act 1886 an appeal under s. 222 is by way of re-hearing on the evidence given in the proceeding before the justices.  A court may give leave to adduce fresh, additional or substituted evidence if the court is satisfied there are special grounds for giving leave. 
  2. [8]
    As to the conduct of a s. 222 appeal, Sofronoff P said in Forrest v Commissioner of Police[2]:

“…such an appeal by way of re-hearing requires an appellate court to decide the case for itself.  Although the reasoning of the court from which such an appeal has been brought is relevant to be considered by an appellate tribunal and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law.  Nor is there an onus on the appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.”[3]

Later, his Honour said:

“…a appellate court hearing an appeal by way of re-hearing must conduct a real review of the evidence and make up its own mind about the case.”

  1. [9]
    This therefore is the approach that an appellate court in a matter such as this must adopt whilst noting that it is not a sufficient basis for the appellate court to intervene because another court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the sentencing discretion.[4]
  2. [10]
    However, if a specific error in the exercise of the sentencing discretion is identified, the sentence must be set aside and the sentencing discretion exercised afresh, unless in the separate and independent exercise of that discretion the appellate court concludes that no different sentence should be imposed.
  3. [11]
    And, as is well established, even if a specific error is not demonstrated, the appellate court may find that the sentence is excessive, in that it lies outside the permissible exercise of discretion, in which case the appellate court is to re-exercise the sentencing discretion afresh.
  4. [12]
    Relevant to this matter, s. 222(2)(c) provides an exception to the provisions of s. 222(1), that being that if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under s. 222 on the sole ground that the penalty was excessive or inadequate.

Ground of appeal

  1. [13]
    Pursuant to s. 222(2)(c), the sole ground of appeal is that the sentences imposed were excessive.
  2. [14]
    The appellant has particularised the learned Magistrate’s alleged errors resulting in such alleged excessiveness as follows:
  1. 1.
    The learned Magistrate erred in failing to order that the sentences imposed be subject to an operational period.
  1. 2.
    The learned Magistrate failed to properly assess the appellant’s culpability for the offences and sentence of the appellant on an incorrect basis.
  1. 3.
    The learned Magistrate erred by sentencing the appellant by way of a “two-step process” in that her Honour first, considered whether exceptional circumstances existed and secondly, determined the sentence to be imposed. 
  1. 4.
    The learned Magistrate erred in failing to apply the correct approach established by authority, the principle in s. 9(5) and the considerations in s. 9(6) of the Penalties and Sentences Act 1992 in determining whether there were exceptional circumstances which warrant the imposition of a sentence that did not involve custody.
  1. 5.
    The learned Magistrate failed to apply the principle that youthful offenders, with limited criminal histories and promising prospects of rehabilitation, who have pleaded guilty and co-operated with the administration of justice, even having committed serious offences, should be treated with leniency.

Facts relating to offences

  1. [15]
    The appellant’s date of birth is 19 December 2002.  He had therefore just turned 19 at the time of the event the subject of Charge 1 and was approximately 19 years 2-3 months of age at the time of the events the subject of Charges 2, 3 and 4.[5]
  2. [16]
    The complainant was aged approximately 15 years nine months at the time of the event the subject of Charge 1 and 15 years 11 months at the time of the events the subject of Charges 2, 3 and 4.[6]
  3. [17]
    At the relevant times the appellant and the complainant were in a boyfriend/girlfriend relationship.
  4. [18]
    In relation to Charge 1, the complainant attended the appellant’s house and when in his bedroom they had sexual intercourse.
  5. [19]
    In relation to Charges 2, 3 and 4, the complainant was again at the appellant’s home and the appellant attempted to initiate sexual activity by touching and kissing the complainant intimately.  The complainant stated that due to a medical condition she was in too much pain to have sex.  Subsequently, although reluctant, the complainant acquiesced and performed oral sex on the appellant which occurred for over an approximate period of five minutes.  They then attempted intercourse at the appellant’s request.  The penetration proved too painful for the complainant and she started to bleed.  Intercourse immediately ceased and the complainant, at the appellant’s request, performed further oral sex on the appellant until he ejaculated.  They both then fell asleep.
  6. [20]
    The complainant ended the relationship about two weeks later.
  7. [21]
    The Statement of Facts (Ex. 1) then (rather curiously) states:

“The sentence proceeds on the basis that the Crown cannot exclude that the defendant mistakenly but honestly and reasonably believed that the complainant consented to sexual intercourse.”[7]

  1. [22]
    The complainant disclosed the offending to her mother in or around March 2022 and made a complaint to police on 19 May 2022. 
  2. [23]
    On 11 October 2022 the complainant took part in a pretext call with the appellant.  During that call the appellant made admissions to knowing the complainant’s age and to having sex with her.  He stated throughout the call that he thought that the sexual intercourse with the complainant was consensual.
  3. [24]
    The appellant was charged on 28 November 2022.
  4. [25]
    The complainant prepared a Victim Impact Statement which was tendered in the sentence hearing (Ex. 2) in which she stated that the offending conduct not only caused her stress, it also adversely affected her emotionally and socially and has impacted her self-esteem.  She has experienced ongoing insomnia, nightmares and night terrors and she is continuing to engage in long-term therapy.  She also stated that she moved address with her family in February 2023 and started at a new school at that time to “have a fresh start”.  The offending also had an adverse financial effect on her family and uprooted their lives as well.

Appellant’s antecedents

  1. [26]
    The appellant was only 19 years old at the time of offending and he has no criminal history.  He, at the time of sentence, was in full-time employment.  He has the support of his family and is not a user of illicit drugs and does not misuse alcohol.
  2. [27]
    The appellant also evidenced his remorse by not only making admissions in the pretext phone call but also by writing a letter of apology (Ex. 3) and entering timely pleas of guilty.

Consideration

  1. [28]
    Given that the appellant was convicted of offences of a sexual nature committed in relation to a child under 16 years, s. 9(4)(c) of the Penalties and Sentences Act provides that he must serve an actual term of imprisonment unless there are exceptional circumstances.
  2. [29]
    Section 9(5) of the Penalties and Sentences Act states:

“For subsection (4)(c), in deciding whether there are exceptional circumstances, a court may have regard to the closeness in age between the offender and the child.”

  1. [30]
    Section 9(6) states:

“In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

  1. the effect of the offence on the child; and
  2. the age of the child; and
  3. the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
  4. the need to protect the child, or other children, from the risk of the offender reoffending; and
  5. any relationship between the offender and the child; and
  6. the need to deter similar behaviour by other offenders to protect children; and
  7. the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
  8. the offender’s antecedents, age and character; and
  9. any remorse or lack of remorse of the offender; and
  10. any medical, psychiatric, prison or other relevant report relating to the offender; and
  11. anything else about the safety of children under 16 the sentencing court considers relevant.”
  1. [31]
    In this matter the learned Magistrate concluded that no exceptional circumstances existed.  In assessing that issue, she took the following matters into account:[8]
    1. the age difference between the complainant and the defendant;[9]
    2. the effect of the offending conduct on the complainant;
    3. the complainant’s age being 15 years;
    4. the nature of the offending conduct; and
    5. the fact that the complainant experienced pain on one occasion;
    6. the appellant’s low risk of re-offending;
    7. general deterrence;
    8. the appellant has good prospects of rehabilitation;
    9. the appellant has no relevant psychiatric condition;
    10. the appellant’s youth; and
    11. the appellant’s remorse.
  2. [32]
    Whilst the Magistrate did not make specific mention of considering these matters in combination when assessing if exceptional circumstances have been demonstrated, I note that she did make reference to such an approach when discussing relevant authorities on the topic.  I infer therefore that her Honour did adopt such an approach. 
  3. [33]
    However, it is immediately apparent that not all matters of relevance were taken into account by her Honour when determining if exceptional circumstances had been demonstrated, or alternatively, it was not made clear just what was being taken into account when making such an assessment.
  4. [34]
    Those matters, which ought to have been included in the consideration or ought to have been more clearly identified are:
  1. (a)
    not only that the complainant was 15 years of age, but also that she was only three months and one month short of turning 16 years of age at the relevant times;
  1. (b)
    the “nature of the offending” included the facts that:
  1. (i)
    it occurred in the context of a boyfriend/girlfriend relationship;
  1. (ii)
    it involved no or very minimal sexual exploitation on the part of the appellant;
  1. (iii)
    the age gap was only approximately three years four months;
  1. (iv)
    there were no threats made nor force or violent behaviour on the part of the appellant; and
  1. (v)
    in respect of Charge 3, the sexual intercourse ceased immediately upon the complainant stating that it was painful.
  1. (c)
    the potential adverse impact of a short period of actual imprisonment on the appellant’s rehabilitation.
  1. [35]
    Such omissions constituted an error on the part of the Magistrate – either by virtue of relevant matters being overlooked or by failing to sufficiently identify that which was being considered such that this Court can identify exactly what has been taken into account.
  2. [36]
    In an analogous situation in Forrest v Commissioner of Police, Sofronoff P said:

“At present, it is simply not possible to know why the applicant’s appeal was dismissed.  And, therefore, this Court cannot carry out its function of determining whether that decision was correct or not on the merits.  The failure to give reasons is itself a reason. 

And a sufficient reason on its own, why this application must be granted and why the appeal must be allowed.”

  1. [37]
    In applying that approach to this matter, it is impossible for this Court to determine if, when the learned Magistrate said that she took “the nature of the offences” into account, whether she took into account those matters favourable to the appellant.  That is particularly the case, given that her Honour had earlier in her sentencing remarks said that she took into account “the serious nature of the offences” and then went onto to detail those matters that made the offences serious.[10]
  2. [38]
    This is an error which, enlivens the discretion of this Court to sentence afresh.
  3. [39]
    Given this conclusion, it is unnecessary for me to consider the other arguments advanced on behalf of the appellant as to why the appeal should be allowed.

Re-sentencing

  1. [40]
    With that approach in mind, in my view, the matters referred to earlier in this judgment do, in combination amount to exceptional circumstances notwithstanding the serious features of the offending conduct that must also be taken into account; ie:
    1. the adverse impact the offending had on the complainant and her family;
    2. the fact that the offending conduct occurred on two separate occasions; and
    3. the fact that on the second occasion, the appellant was persistent in his requests for sexual activity and demonstrably prioritised his sexual desires over the reasons the complainant gave as to why she did not wish to engage in sexual conduct.
  2. [41]
    To be clear though, the matters which I regard as amounting to exceptional circumstances when considered in combination are:
    1. the very young age of the appellant;
    2. the fact that the complainant was only three months and one month short of being 16 years of age at the relevant times;
    3. the narrow age gap between the complainant and the appellant;
    4. the fact that the offending conduct did not involve threats, force, violence or intimidation;
    5. the fact that the complainant consented to the acts or that the appellant had an honest and reasonable but mistaken belief as to consent;
    6. the fact that the offending conduct was in the context of a boyfriend/girlfriend relationship and involved no or very minimal sexual exploitation;
    7. in relation to Charge 3: the fact that intercourse ceased immediately upon the complainant’s request;
    8. the appellant’s early pleas of guilty;
    9. the existence of strong evidence of the appellant’s remorse;
    10. the fact that the appellant has no prior or subsequent convictions;
    11. the fact that the appellant presents with a low risk of re-offending and therefore specific deterrence is of little relevance;
    12. the appellant has no psychological or psychiatric issues of relevance;
    13. the appellant has excellent prospects of rehabilitation; and
    14. a short term of actual imprisonment could significantly adversely affect the appellant’s rehabilitation.
  3. [42]
    When determining if exceptional circumstances exist, no two cases are alike, and as was said by Burns J in R v BCX [2015] QCA 188 at [36]:

“Lastly, in the absence of any statutory definition of ‘exceptional circumstances’, it is understandable why a sentencing judge might seek to draw guidance from the findings made on that point in other cases, and particularly where those cases have been the subject of appellate review.  But such an approach can be fraught because it is prone to distract from the requirements of the sentencing task as just discussed.  Moreover, rarely, if at all, will the circumstances of one case be sufficiently comparable with the circumstances of another case to derive much assistance from such an exercise.  Indeed, just as it would be inappropriate for a sentencing judge to grade the criminality in a case at hand through a comparison of aggravating and mitigating factors in other cases as if there could only ever be a single correct sentence so, too, would it be inappropriate to conclude that a finding of exceptional circumstances, or not, in one case dictates that the same finding should be made in another.” (Footnotes omitted).

  1. [43]
    His Honour also noted at [30]:

“When undertaking such an assessment, it should not be thought that a combination of circumstances, none of which is individually exceptional, can never be regarded as exceptional, because it may be that it is only in combination that particular circumstances take on an exceptional quality.  The position is summarised in Tootell in the following way:

‘What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional.  Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.’” (Footnotes omitted).

  1. [44]
    Whilst noting that seeking guidance on the issue of what may constitute exceptional circumstances by examining other cases may be fraught, senior counsel for the appellant has referred this Court to a number of single judge decisions of this Court where the combination of factors has resulted in a finding of exceptional circumstance.
  2. [45]
    Whilst those matters offer some support for my assessment of the existence of exceptional circumstances in this case, I wish to be clear that I would have reached the conclusion I have reached irrespective of whether other judges have made similar assessments in the past.  The categorisation of the combination of circumstances in this matter as “exceptional” is unquestionable.
  3. [46]
    Having so concluded, I am of the view that appropriate sentences for these charges are such that no actual term of imprisonment ought be served.
  4. [47]
    Senior Counsel for the appellant has submitted that appropriate sentences would be:

Charge 1: nine months imprisonment

Charge 2: six months imprisonment

Charge 3: 12 months imprisonment

Charge 4: six months imprisonment

and that each sentence be suspended forthwith with an operational period of 12 months.

  1. [48]
    I agree with that submission.

Orders

  1. 1.
    Appeal allowed.
  1. 2.
    Sentences imposed in Magistrates Court at Brisbane be set aside in respect of each charge.
  1. 3.
    The appellant is re-sentenced as follows:
  1. Charge 1: nine months imprisonment
  1. Charge 2: six months imprisonment
  1. Charge 3: 12 months imprisonment
  1. Charge 4: six months imprisonment
  1. All terms of imprisonment are to be served concurrently. 
  1. Each term of imprisonment is suspended immediately with an operational period during which the appellant must not commit any other offence punishable by imprisonment for a period of nine months in respect of Charge 1, six months in respect of Charges 2 and 4 and 12 months in respect of Charge 3. 

Footnotes

[1]Pursuant to s. 188 of the Penalties and Sentences Act 1992 (Qld).

[2][2017] QCA 132.

[3]See also Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124.

[4]R v Lawley [2007] QCA 243.

[5]Page 9, l 34 of Appeal Record Book.

[6]Ex. 1.

[7]It is unclear whether this statement relates to both Charges 1 and 3 or just Charge 3.  I also have some difficulty in understanding this statement as, pursuant to the admitted facts, the complainant did consent to sexual intercourse on each occasion.  In any event, little of relevance turns on the issue.

[8]Page 28, l 39 – p 29, l 20 of Appeal Record Book.

[9]During submissions the age difference was said to be four years.  In fact, it was approximately three years, four months.

[10]Page 22, ll 28 – 37, Appeal Record Book.

Close

Editorial Notes

  • Published Case Name:

    TJS v Director of Public Prosecutions

  • Shortened Case Name:

    TJS v Director of Public Prosecutions

  • MNC:

    [2024] QDC 122

  • Court:

    QDC

  • Judge(s):

    Farr SC DCJ

  • Date:

    07 Aug 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
1 citation
Jump To
Cite 1 - (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
2 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
R v BCX [2015] QCA 188
2 citations
Jump To
Cite 1 - [2015] QCA 188
Cite 2 - [2015] QCA 188
R v Lawley [2007] QCA 243
2 citations
Jump To
Cite 1 - [2007] QCA 243
Cite 2 - [2007] QCA 243
Warren v Coombes (1979) 142 CLR 531
1 citation
Jump To
Cite 1 - (1979) 142 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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