SUPREME COURT OF QUEENSLAND

CITATION:	R v McCoy [2020] QCA 59	
PARTIES:	R
v
McCOY, Christopher John
(applicant)	
FILE NO/S:	CA No 338 of 2018
DC No 1157 of 2018
DC No 1158 of 2018
DC No 1159 of 2018	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 19 November 2018 (Rafter SC DCJ)	
DELIVERED ON:	3 April 2020	
DELIVERED AT:	Brisbane 	
HEARING DATE:	28 November 2019	
JUDGES:	Sofronoff P and Fraser JA and Boddice J	
ORDER:	The application for leave to appeal against sentence be refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of two counts of maintaining a sexual relationship with a child, eight counts of indecent treatment of a child under 16 under 12 and nine counts of rape – where the applicant was convicted on his own pleas of guilty to one count of possessing child exploitation material, one count of using a carriage service to access child pornography material, one count of using a carriage service to cause child pornography material to be transmitted to himself and five counts of failing to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the applicant’s convictions breached suspended sentences and probation orders – where the applicant was sentenced to 10 years’ imprisonment for each maintaining count and lesser periods of imprisonment for the remaining counts – where the applicant was declared to have been convicted of serious violent offences – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentences were manifestly excessive – where each maintaining count involved sexual conduct against separate male complainants aged seven to eight and eight to nine years at the time of the offences – where the applicant was aged 19 to 20 years at the time of the offences – where the applicant had extensive and relevant past criminal history including offences committed both before and subsequent to the sexual conduct the subject of the maintaining counts – where the pre-sentence report, including a psychiatric assessment, recorded a continual refusal by the applicant to accept responsibility for the offending – where the sentencing Judge accepted that principles of totality were applicable – where the sentencing Judge had regard to a number of mitigating factors, including the applicant’s age, prospects of rehabilitation and pleas of guilty – whether the sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant seeks leave to appeal the sentences of 10 years’ imprisonment for each maintaining count on the ground that the sentencing judge erred in failing to sufficiently take into account the applicant’s youth, prospects of rehabilitation and mental illness – where the psychiatrist expressed the opinion that the applicant satisfied the diagnostic criteria for a number of psychiatric conditions – where the sentencing judge accepted that the applicant’s psychiatric condition was complex and relevant – where the sentencing judge had regard to a number of mitigating factors, including the applicant’s age and prospects of rehabilitation – whether there was an error of principle
Child Protection (Offender Reporting) Act 2004 (Qld)
Crimes Act 1914 (Cth)
Penalties and Sentences Act 1992 (Qld)
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v CBQ [2016] QCA 125, cited
R v Herford [2001] QCA 177, cited
R v SCK [2016] QCA 34, cited
R v Souter [2002] QCA 516, cited
R v TAJ [2018] QCA 305, cited	
COUNSEL:	S J Hamlyn-Harris for the applicant
D Balic for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	SOFRONOFF P:  I agree with Boddice J.
[2]	FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.
[3]	BODDICE J:  On 25 May 2018 the applicant was convicted by a jury of two counts of maintaining a sexual relationship with a child, eight counts of indecent treatment of a child under 16 under 12 and nine counts of rape.
[4]	The applicant was also convicted, on his own pleas of guilty, of one count of possessing child exploitation material, one count of using a carriage service to access child pornography material, one count of using a carriage service to cause child pornography material to be transmitted to himself and five counts of failing to comply with reporting under the Child Protection (Offender Reporting) Act 2004 (Qld).
[5]	The applicant’s convictions also breached suspended sentences imposed on 13 January 2014 and 6 November 2015 and probation orders imposed on the same dates.
[6]	On 19 November 2018, the applicant was sentenced to 10 years’ imprisonment for each maintaining count and lesser periods of imprisonment for the remaining counts.  As a consequence of the sentence of 10 years imprisonment on each maintaining count, the applicant was automatically declared to have been convicted of serious violent offences with the consequence that he be required to serve 80 per cent of that sentence prior to being eligible for release on parole.
[7]	The applicant seeks leave to appeal the sentences of 10 years imprisonment for each maintaining count.  The applicant relies on three grounds of appeal, should leave be granted to appeal those sentences:
1.	The sentence was manifestly excessive.
2.	The learned sentencing judge erred in failing to sufficiently take into account the applicant’s youth, prospects of rehabilitation and mental illness.
3.	The learned sentencing judge erred in the proper approach to be taken, in relation to the applicant’s mental illnesses at the time of the sentence.
Background
[8]	Each maintaining count involved sexual conduct against separate male complainants, between 31 December 2011 and 27 January 2013.  The complainants were brothers.  The younger complainant was aged seven to eight years at the time of the offences.  The older male complainant was aged eight to nine years.
[9]	In total, there were 19 sexual offences committed against those two brothers.  The nine counts of rape and eight counts of indecent treatment of a child under 16 under 12 involved offences which were particulars of the maintaining counts.
[10]	The applicant, who was born on 30 January 1992, was aged 19 to 20 years at the time of the offending and 26 years at sentence.  He had an extensive and relevant past criminal history.  It contained offences committed both before and subsequent to the sexual conduct the subject of the maintaining counts.
[11]	Relevantly for the purposes of his sentence for the maintaining counts, the applicant had been convicted of sexual offending on 13 January 2014 and 6 November 2015.
[12]	On 13 January 2014, the applicant pleaded guilty to seven counts of indecent treatment of a child under 16 under 12 and under care and one count of rape.  The complainant was the younger male complainant the subject of the maintaining count.  All of those offences had been committed on 27 January 2013 when the complainant was aged eight years.  The offending involved fondling, masturbation and oral sex.  The applicant filmed that sexual contact on his telephone.  The applicant was sentenced, in respect of the offence of rape, to three years imprisonment, suspended after nine months, for an operational period of five years.  In respect of the remaining counts, he received sentences of nine months’ imprisonment and three years’ probation, with a special condition that he undergo medical, psychological and psychiatric examination and treatment.  An appeal by the Attorney-General against sentence was dismissed on 24 June 2014.
[13]	On 21 October 2015, the applicant pleaded guilty to one count of indecently dealing with a child under the age of 16 years, under 12, under care and seven counts of indecent treatment of a child under 16, all committed in 2010.  The first offence involved a male complainant aged 10 to 11 years who was being supervised by the applicant at a sleep over, as a friend of the applicant’s brother.  The applicant rubbed his penis in the area of that male complainant’s buttocks.  The remaining counts were committed against a different male complainant, again in 2010, at the applicant’s residence.  That complainant was aged 13 to 14 years.  The offending conduct included fondling, oral sex and touching the complainant’s anal area whilst the applicant masturbated himself.  There was then mutual masturbation to ejaculation.  The applicant was sentenced to six months imprisonment and three years’ probation in respect of the single offence involving the complainant aged 10 to 11 years, and 18 months imprisonment, suspended after six months, for an operational period of five years, for the offence involving the other complainant.
Offences
[14]	The offences the subject of the present application came to the attention of authorities in December 2015 after the younger male complainant told his mother that the applicant had done the same things to his older brother as he had done to that complainant in January 2013.  The older complainant then made disclosures about one incident of sexual offending.  The applicant was interviewed by police and denied the offences.
[15]	In 2017, when both male complainants were in foster care, the older complainant made further disclosures to a foster carer who had found images of men in underwear on the older complainant’s laptop.
[16]	The male complainant made substantial further disclosures to police of sexual offending involving himself, his younger brother and the applicant.  Again, the applicant denied the offending conduct had taken place.  He asserted the mother of the two complainants was angry at the sentence imposed in respect of the earlier convictions for offending against the younger complainant and had put them up to making further allegations against him.
[17]	The offending behaviour involved a variety of sexual contact which had commenced in about June 2012, although the offending conduct the subject of the count occurred between 31 December 2011 and 27 January 2013.  The offending conduct had ceased when the previous offences against the younger complainant were discovered and both complainants had no further contact with the applicant.
[18]	Initially, the sexual contact involved fondling but quickly escalated to oral sex and anal sex.  The offending behaviour continued despite obvious pain to the complainants.  On occasions, the sexual conduct involved both complainants at the same time.  The older complainant was given money for performing some sexual acts.
[19]	The child pornography offences related to hundreds of images depicting child exploitation material.  Some of the images included prepubescent male children in various stages of undress, engaging in sexual activity with other prepubescent male children or adult males or depicted in sexually explicit poses.
[20]	The applicant admitted to police that he had a preference for young males aged between 11 and 13 years and that he would trawl through Twitter profiles to find other users who were interested in male children.  He would befriend those users and connect with them.  On occasions, he engaged in sexually explicit conversations using social media applications with other account users.  Some of those persons sent him child exploitation material which he saved on his mobile telephone.  He had communicated with a 14 year old boy in America who had sent him pictures of male children.  Those pictures included naked photographs and sexual conduct.  The failure to report offences related to a failure to report that internet and email account conduct.
Sentencing hearing
[21]	At sentence, the applicant materially relied upon a report from a consultant forensic psychologist, as well as reports from another psychologist and a consultant psychiatrist.  The court also had ordered a pre-sentence report, including a psychiatric assessment.  As a consequence of that report, no reliance was placed on the earlier reports tendered at the hearing by the applicant’s legal representatives.
[22]	The pre-sentence report recorded a continual refusal by the applicant to accept responsibility for his offending, with ongoing blaming of the mother of the complainants.  The pre‑sentence report also referred to a long-term destructive history of substance abuse.
[23]	The psychiatric assessment noted the applicant’s continued denial of any sexual conduct with the younger male complainant, prior to the offences on 27 January 2013, and his denial of any sexual offending against the older male complainant.  The psychiatrist expressed the opinion that the applicant fulfilled the diagnostic criteria for a number of psychiatric conditions, being persistent depressive disorder (dysthymia); post‑traumatic stress disorder; stimulant use disorder; other hallucinogen use disorder; antisocial personality disorder; borderline personality disorder; paedophilic disorder non-exclusive type; and a past history of substance-induced psychotic disorder, with onset during intoxication.
[24]	The psychiatrist noted that previous sexual abuse as a child may have predisposed the applicant to act on his paedophilic urges and that his post-traumatic disorder had a delayed onset occurring at the time he was charged with the single offence against the younger male complainant in 2013.  The symptoms of the post-traumatic stress disorder had intensified after reports of the applicant’s sexual abuse as a child.  The applicant became acutely distressed and reported symptoms of post-traumatic stress disorder when confronting his offending behaviour.  That said, the psychiatrist noted that the applicant’s reports of being sexually abused as a child had been inconsistent.  In any event, successful treatment would not depend on resolution of that issue.
[25]	The psychiatrist opined that the applicant was a high risk of sexual offence recidivism and that his lack of insight into the impact of his offences upon the victims were concerning features.  As a result, the prognosis for recovery from the paedophilic disorder was guarded.  The applicant’s age was a risk factor, as was his substantial history of child sex offences and his failure to comply with community-based supervision orders in the past.
Sentencing remarks
[26]	The sentencing judge accepted that principles of totality were applicable.  The applicant’s previous sentences for offending against the younger male complainant on 27 January 2013 marked the end of his extended period of offending against that complainant.  Accordingly, the period of nine months’ imprisonment served as a result of those offences should be taken into account, as should the period of six months’ imprisonment served following the imposition of the sentence on 6 November 2015.
[27]	After observing the risks associated with adopting a global approach to sentencing where there is a prospect of a serious violent offence declaration and noting the applicable principles for sentencing under s 9 of the Penalties and Sentences Act 1992 (Qld) in respect of sexual offences, and in the Crimes Act 1914 (Cth) in respect of the Commonwealth offences, and the consequences of the breaches of the suspended sentences and probation orders, the sentencing judge observed that an appropriate starting point for the applicant’s offending was imprisonment for 11 years.  Having regard to the time spent in actual custody as a result of the sentences imposed on 13 January 2014 and 6 November 2015, the sentence was properly to be moderated to imprisonment for 10 years.
[28]	In imposing sentences of 10 years imprisonment for each maintaining count, the sentencing judge expressly noted the many serious features of the applicant’s conduct, including the complainants’ youth, that the offending involved anal rape of both male complainants, that the offending period spanned approximately seven months, and that the offending involved manipulation and grooming and sexual acts involving both boys at the same time.  The sentencing judge found that the applicant had corrupted both male complainants to the extent that they became accustomed to his predatory behaviour.  He had, on occasions, used bribery.  The sentencing judge also observed that there was a complete absence of remorse and that much of the offending occurred when the applicant was subject to an intensive correction order.
[29]	The sentencing judge accepted that the applicant’s psychiatric condition was complex and relevant.  The paedophilic disorder and high risk of sexual offence recidivism meant that the protection of the community was an important factor.  Further, the applicant’s mental abnormality marked him as a more intractable subject for reform, again giving rise to the protection of the community.
[30]	The sentencing judge had regard to a number of mitigating factors, including the applicant’s age, prospects of rehabilitation with appropriate treatment, pleas of guilty to the child pornography and summary offences, and lack of relevant criminal history at the time he committed the sexual offences.
[31]	Finally, the sentencing judge expressly recognised the consequence of imposing sentences of 10 years imprisonment, namely the automatic declaration that the applicant had been convicted of serious violent offences, with the necessity that he serve 80 per cent of those sentences before being eligible for release on parole.  The sentencing judge observed that was “a consequence of your serious offending and cannot be avoided”.
Applicant’s submissions
[32]	The applicant submits that the sentences were manifestly excessive as they failed to give consideration to the total effect of the sentences, in the context of the applicant’s total criminality and relative youth at the time of the offending.
[33]	The applicant submits that the application of the totality principle required an evaluation of the applicant’s overall criminality, not only for the offences for which he was being sentenced, but also for offences, the subject of previous sentences.  The applicant had earlier pleaded guilty to several sexual offences involving the same younger male complainant.  Each of the maintaining offences had been committed before the applicant was dealt with for those other offences.  Whilst the applicant had re-offended by committing child pornography offences, he had not committed any further offences involving actual sexual contact with children.
[34]	The applicant submits that when regard was had to those earlier sentences, the applicant was sentenced to an overall effective head sentence of 12 years, seven months with a non-parole period of nine years, three months.  Such a sentence was manifestly excessive for a person of his age and rehabilitation needs.  A sentence of eight years’ imprisonment, with a serious violent offence declaration, would properly reflect the applicant’s overall criminality.
Respondent’s submissions
[35]	The respondent submits that the sentences imposed were not manifestly excessive.  Community protection was an obvious relevant focus.  The totality principle was respected both in the express reduction in the head sentence from 11 years to 10 years and the express consideration that the sentences for the breaches and the new offences were to be served concurrently.
[36]	The respondent submits that the sentencing judge took into account the applicant’s youth, concluding there were some prospects of rehabilitation but properly observing that the offences were particularly serious, involving violent sexual conduct in the context of corruption of the young male complainants, and a lack of remorse.
[37]	The respondent submits that a consideration of comparable authorities supports a conclusion that the sentences imposed were a proper reflection of the applicant’s overall criminality.
Discussion
[38]	A principle of sentence, encompassed by the principle of totality, is the ability of a court to mitigate the sentence where the total effect of the sentences merited by individual crimes becomes so crushing as to justify a reduction to the overall total effect of the sentences.
[39]	The application of that principle was discussed by McHugh J in Postiglione v The Queen:
“The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged.  Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle.  Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved in the offences for which the offender is being sentenced, but also in any other offences for which the offender is currently serving a sentence.” (citations omitted)
[40]	A consideration of the sentencing remarks supports a conclusion that the sentences imposed on the applicant gave due regard to that principle.  In affixing a sentence of 10 years’ imprisonment for each of the maintaining counts, the sentencing judge expressly reduced what would otherwise have been a sentence of 11 years’ imprisonment, to allow for time actually served by the applicant in respect of earlier sentences.
[41]	Further, a consideration of the applicant’s criminality, in the context of his youth and other mitigating factors, supports a conclusion that a sentence of 10 years’ imprisonment, with the consequence that the applicant be required to serve 80 per cent of that sentence, fell within a sound exercise of the sentencing discretion.
[42]	The applicant had engaged in abhorrent behaviour in respect of two young male complainants.  The offending included oral and anal intercourse and involved sexual conduct, on occasions, with both complainants at the same time.  It was rightly to be described as predatory and corrupting behaviour.  There was, on occasions, aggressive sexual conduct, persisted in despite obvious pain to the male complainants.
[43]	The fact that the applicant had been previously sentenced in respect of sexual offences against the younger male complainant that had been committed at the end of the maintaining period, did not detract from the serious nature of the applicant’s offending.  Neither the applicant’s youth, nor his significant mental health issues, justified the imposition of a sentence of a lesser magnitude.
[44]	A consideration of comparable authority supports a conclusion that a sentence of 10 years’ imprisonment for each maintaining count was not manifestly excessive.  Whilst some of those comparable authorities involved significantly older offenders, or involved offenders in particular relationships of trust, the applicant’s persistent predatory conduct, continuing sexual conduct despite obvious pain and engaging the two complainant siblings in sexual conduct at the same time, were aggravating features justifying a sentence of that magnitude.
[45]	The applicant’s mental health disorders were relevant factors on sentencing, and the sentencing judge had regard to those conditions, properly, in the applicant’s circumstances, regarding the existence of those disorders including paedophiliac disorder as an aggravating factor.  The sentencing judge still recognised that as the applicant was a youthful offender, rehabilitation was a relevant consideration.
Conclusion
[46]	The sentence imposed for the offences of maintaining a sexual relationship with a child fell within a sound and proper exercise of the sentencing discretion.
[47]	The sentencing judge took into account the applicant’s youth, prospects of rehabilitation and mental illnesses, in imposing those sentences.
[48]	There was no error of principle.  The sentences were neither plainly unreasonable nor unjust.  The sentences were not manifestly excessive.
[49]	The sentences of 10 years’ imprisonment had regard to the previous sentences and represented a proper reflection of the applicant’s overall criminality.
Orders
[50]	I would order that the application for leave to appeal against sentence be refused.