Queensland’s Attorney-General has successfully appealed an 18-month jail term handed to a sex offender – with the state’s highest court ordering it be doubled to three years.
The Court of Appeal (COA) in Brisbane last month granted an appeal against the sentence imposed by a District Court judge on Joshawa Eric Lyle Kane, 28, for a sexual assault committed on 15 November 2020.
Kane pleaded guilty to one count of sexual assault in the Brisbane District Court on 19 April (2022) and was sentenced to 18 months’ imprisonment, but was released immediately having already served 282 days in presentence custody.
Attorney-General (A-G) Shannon Fentiman appealed the sentence on two grounds – including the jail term was “manifestly inadequate”.
The COA, comprising President Debra Mullins AO and Justices Jean Dalton and Peter Flanagan, allowed the appeal and doubled the original sentence handed to Kane by Judge Michael Williamson KC.
The court had been told Kane sexually assaulted a 22-year-old female he did not know as she was walking through a park at 7am to a nearby train station. Kane followed the woman after attempts to speak to her and assaulted her after dragging her to a nearby cricket club. The assault ended when a passerby went to her assistance after hearing her cries for help.
“(Kane) pleaded guilty to one count of sexual assault committed against the complainant on 15 November 2020. He was sentenced to 18 months’ imprisonment suspended after serving 282 days in custody for an operational period of three years,” the COA said.
“A presentence custody declaration was made in respect of the 282 days that he had spent in custody prior to the date of sentence. That enabled (Kane) to be released from custody on the partially suspended sentence on the day he was sentenced.”
The A-G, represented by Director of Public Prosecutions Carl Heaton KC, subsequently appealed the decision on the grounds the sentencing judge had made an error in failing to have proper regard as to the serious nature of the circumstance of the offence, as regards to the maximum penalty and because the sentence imposed was “manifestly inadequate”.
The COA, at the conclusion of hearing the matter on 21 November, granted the appeal and set aside the sentence imposed by Judge Williamson with a term of three years’ imprisonment.
“It is important for this Court on appeal to intervene where the (A-G) has shown … an error of principle was made by the primary judge,” the COA said.
“The (A-G) bears the onus of showing that the residual discretion should not be invoked.
“It was a compelling consideration that, when the appeal was heard, it was over seven months since (Kane) had been released into the community and it would be undesirable to return him to custody immediately with the potential of disrupting his reintegration into the community.
“Conformably with the structure of the sentence imposed by the primary judge and to give recognition to the length of time since the respondent had been released into the community, a sentence of three years’ imprisonment could still be suspended after the presentence custody that had been served to the date of sentence, as the operational period for the suspended sentence imposed by the sentencing judge was three years from the date of sentence.
“By varying the sentence to imprisonment for three years instead of 18 months, if Mr Kane now commits an offence during the operational period of the suspended sentence, he will risk being required to serve the balance remaining of a term of imprisonment of three years which is a little over two years and two months.
“That is why at the conclusion of the hearing of the appeal the Court made the orders to the effect of maintaining the sentence structure imposed by the primary judge, but ensured that if Mr Kane were not successful with his rehabilitation and were to commit another offence punishable by imprisonment during the operational period of the partially suspended sentence, the balance of the sentence that he may be ordered to serve could be up to three years (less the presentence custody of 282 days) which means the sentence now more closely reflects the serious features of his offending without interfering with his rehabilitation that commenced with his release from custody.”
Read the decision.