R v Free; Ex parte Attorney-General (Qld)

The respondent was convicted of offences including taking a child under 12 for an immoral purpose, and was sentenced to eight years’ imprisonment with parole eligibility after two years and eight months. The Attorney-General appealed against the sentence. The primary question in this case was whether the offending had to be “outside the norm” before a serious violent offender declaration could be made. In allowing the appeal, the Court (Philippides JA and Bowskill and Callaghan JJ) confirmed that such an approach is “too narrow”. While no declaration was made the Court varied the sentence at first instance to one of eight years’ imprisonment with no recommendation as to eligibility for parole.

Philippides JA and Bowskill and Callaghan JJ

31 March 2020

Background

The respondent was convicted of taking a child under 12 for an immoral purpose, deprivation of liberty, and indecent treatment of a child under 12. [1]. The sentencing judge imposed a sentence of eight years’ imprisonment with parole eligibility after two years and eight months for the offence of taking a child for an immoral purpose, with lesser concurrent sentences for the other offending. [1]–[2]. The Attorney-General appealed against the sentence on grounds including that the sentencing judge erred by failing to make a serious violent offender declaration. [2].

Relevantly, the Attorney-General argued that the sentencing judge erred in not making a serious violent offender declaration by focusing on a need for factors taking the offending “outside the norm” for that type of offence, before a declaration could be made. [37].

Whether a declaration ought to have been made

After analysing R v McDougall and Collas [2007] 2 Qd R 87, the Court (Philippides JA and Bowskill and Callaghan JJ) concluded that the sentencing judge erred by focusing on the need to find factors taking the offending “outside the norm” before a serious violent offence declaration would be made. [49]. Their Honours observed that while it was likely that other sentencing courts had taken a similar approach when considering whether to exercise the discretion, the Court was convinced that such an approach is “too narrow”. [50].

In light of R v McDougall and Collas, the Court explained that when called upon to consider whether to exercise the discretion, sentencing courts must (at [53]):

“consider all the relevant circumstances, including … the matters in ss 9(1), 9(2) and, primarily, 9(6) of the Penalties and Sentences Act, to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”

However, having regard to those matters, the Court did not consider that the respondent ought to be declared as having been convicted of a serious violent offence. [90].

Comparative sentencing practices

Separately, the Court observed that the starting point of a sentence of eight years, arrived at by reference to cases including R v Cogdale [2004] QCA 129, was too low. [56]–[57]. In that regard, the Court emphasised the need for sentencing courts to be aware of legislative changes enacted to reflect “changing attitudes within the community, and a greater understanding by the courts of the impact of child sexual abuse” when considering comparable sentencing decisions. [64]–[67]. The Court identified changes to s 9 Penalties and Sentences Act 1992 in 2003 and 2010 as relevantly embodying an increased recognition by the courts of the “profoundly damaging impact of sexual offences against child victims”. [69].

The Court also highlighted legislative changes in 2004, and explained that at the time of the sentence in R v Cogdale, it was not within the discretion of the court to declare an offender convicted of a serious violent offence for the offence of taking a child for an immoral purpose. [70]. That was significant, because defence counsel before the sentencing judge had submitted that the Court might find guidance in R v Cogdale regarding whether such a declaration was appropriate. [70]. Ultimately, the Court determined that, before taking account of mitigating and aggravating factors, the appropriate penalty in the circumstances “could not be less than 10 years imprisonment”. [73].

Disposition

In the result, the Court allowed the appeal and varied the sentence imposed at first instance to one of eight years’ imprisonment, with no recommendation as to eligibility for parole. [93]–[94].

B McNamara