R v Foy & A-G [2001] QCA 209

Court of Appeal (Qld)|2001-05-31|Before: Thomas JA, Helman J, Atkinson J

The applicant submits that while the learned sentencing Judge took into account all relevant matters on sentence, he did not give full weight to them. In particular, the applicant relies on the respondent's long and disturbingly worsening criminal history in relation to sex and other offences, the fact that the respondent had only recently concluded his parole period for previous similar offences and that the offences were in public places where children were playing.

However, the ground of appeal in this case was that the sentence imposed was outside the scope of the proper sentencing discretion. The appellant referred to a number of cases to assist the Court in determining what was the proper range of sentence which should have been imposed in this case, including R v Schwob CA 59 of 1996, 24 April 1996; R v Massey CA 63 of 1999, 16 June 1999; R v Marsh CA 351 of 1993, 9 November 1993; and R v Mathers CA 225 of 1995, 27 July 1995.

Taking all of those matters into account, I agree with the submission that the maximum sentence given of three and a half years on Counts 2 and 4 was outside the proper range of sentencing discretion, considering all of the charges with which the respondent was convicted in this case.

In my view, the proper sentence which should have been imposed is a sentence of four and a half years imprisonment, and that should have been imposed on Counts 2, 4, 6, 9 and 12 on the indictment. I would otherwise not disturb the sentence, but I would recommend that the respondent be psychologically assessed while he is in custody and that he undertake treatment in a sex offenders course.

I would accordingly allow the appeal and substitute a sentence for four and a half years imprisonment on Counts 2, 4, 6, 9 and 12 on the indictment.

THOMAS JA: The order of the Court is that the appeal is allowed and the orders which have been stated by Justice Atkinson will be substituted in respect of the counts to which she has referred.

Those factors should undoubtedly reduce the sentence that would otherwise have been imposed: see AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 155 per Hayne J. The applicant submits that the proper term of imprisonment in the circumstances is a four to five year term of imprisonment. The difference is one of six to 18 months from the sentence that was imposed upon the respondent.

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