Hodges v Lucas - [2016] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

Hodges v Lucas [2016] QDC 274

PARTIES:

MICHAEL RICHARD HODGES
(appellant)

v

DETECTIVE SERGEANT LES LUCAS
(respondent)

FILE NO/S:

1850/2016

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court (Brisbane)

DELIVERED ON:

8 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2016

JUDGE:

Farr SC DCJ

ORDER:

1.   Appeal allowed

2.   The order made in the Magistrates Court at Brisbane on 18 April 2016 is set aside and substituted by the following:

Pursuant to s 11 of the Child Offender (Offender Prohibition Order) Act 2008 the appellant is prohibited from:

i.   Accessing the internet; and

ii.    Processing any device, for example, a smartphone which is capable of accessing the internet or any device capable of accessing social media platforms such as Instance Relay Chat Services, Facebook and/or Twitter.

3.   This order will be in place for five years from today

CATCHWORDS:

CRIMINAL LAW – APPEAL - Child Protection (Offender Prohibition Order) Act 2008 – section 52 – where an Offender Prohibition Order was made against the appellant in the Magistrates Court – whether the learned magistrate failed to take into account mandatory considerations imposed by the Child Protection (Offender Prohibition Order) Act 2008 – whether the learned magistrate failed to address the question of whether the appellant represented an unacceptable risk – whether a failure to give reasons amounts to an appealable error.

Child Protection (Offender Prohibition Order) Act 2008, s 6, s 8, s 9, s 11
Child Protection (Offender Reporting) Act 2004, s 9
Criminal Code (Cth), s 474.19
Criminal Code (Qld), s 210, s 218A, s 228A
Dangerous Prisoners (Sexual Offenders) Act 2003

Allesch v Maunz (2000) 203 CLR 172
Bowden v ACI Operations P/L [2003] QCA 293
CDJ v VAJ (1998) 197 CLR 172
Mifsud v Campbell (1991) 21 NSWLR 725

COUNSEL:

J W Fenton for the appellant

D Holliday for the respondent

SOLICITORS:

Legal Aid Office Queensland for the appellant

Queensland Police Service for the respondent

Background

This is an appeal against an Offender Prohibition Order which was made in the Magistrates Court at Brisbane on 18 April 2016 pursuant to s 6 of the Child Protection (Offender Prohibition Order) Act 2008 (the Act).

Pursuant to that order, the appellant was prohibited from the following:

“(a)Unsupervised conduct with children under the age of 16 years;
(b)Attending, loitering or residing within 200 meters of a school or child care centre;
(c) Attending, loitering or residing within 200 meters of a children sporting or recreational facility;
(d)Residing with a child under the age of 16 years;
(e)Accepting any employment which involves unsupervised contact with children;
(f)Accessing the internet;
(g)Possessing any device, for example, a smart phone with internet access or any device capable of accessing social media platforms such as instant relay chat services, Facebook and/or Twitter.

This order will be in place for five years from today.”

Grounds of appeal

The grounds of appeal are:

1. The learned magistrate failed to take into account the mandatory considerations under s 9(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hodges v Lucas

Details

AGLC: Hodges v Lucas [2016] QDC 274
Case: [2016] QDC 274
Decision Date: 8 November 2016

CaseChat Overview and Summary

The appeal before the court was between Hodges, the appellant, and Lucas, the respondent. The dispute centred around an Offender Prohibition Order made against the appellant by the Magistrates Court at Brisbane on 18 April 2016, pursuant to the Child Protection (Offender Prohibition Order) Act 2008. The appellant challenged the legality of the order, arguing that the learned magistrate failed to consider mandatory considerations imposed by the Act and did not address the issue of whether the appellant represented an unacceptable risk. Furthermore, the appellant contended that the failure to give reasons for the order amounted to an appealable error.

The central legal issues for the court to decide were whether the magistrate failed to take into account mandatory considerations as required by the Child Protection (Offender Prohibition Order) Act 2008 and whether the learned magistrate's decision to impose the order was flawed due to the absence of reasons. Additionally, the court had to determine whether the failure to address the question of whether the appellant represented an unacceptable risk constituted a sufficient ground for appeal.

The court found that the magistrate had indeed failed to take into account the mandatory considerations imposed by the Act. The court emphasised that the magistrate must consider the nature and circumstances of the offence, the risk of re-offending, and the potential impact on the community. The court also held that the magistrate had not sufficiently addressed whether the appellant represented an unacceptable risk, which is a critical consideration under the Act. Furthermore, the court found that the failure to provide reasons for the order was a significant error, as it did not allow the appellant to understand the basis for the decision or to challenge it effectively. Consequently, the appeal was allowed, and the order made by the Magistrates Court was set aside and substituted with a revised order.

In summary, the court allowed the appeal, set aside the original order, and substituted it with a new order that prohibited the appellant from accessing the internet and using any device capable of accessing social media platforms. The new order will remain in effect for five years from the date of the court's decision.

Orders

Orders of the court

1. Appeal allowed

2. The order made in the Magistrates Court at Brisbane on 18 April 2016 is set aside and substituted by the following:

Pursuant to s 11 of the Child Offender (Offender Prohibition Order) Act 2008 the appellant is prohibited from:

i. Accessing the internet; and

ii. Processing any device, for example, a smartphone which is capable of accessing the internet or any device capable of accessing social media platforms such as Instance Relay Chat Services, Facebook and/or Twitter.

3. This order will be in place for five years from today

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hodges v Lucas [2016] QDC 274
PARTIES:	MICHAEL RICHARD HODGES (appellant) v DETECTIVE SERGEANT LES LUCAS (respondent)
FILE NO/S:	1850/2016
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court (Brisbane)
DELIVERED ON:	8 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2016
JUDGE:	Farr SC DCJ
ORDER:	1. Appeal allowed 2. The order made in the Magistrates Court at Brisbane on 18 April 2016 is set aside and substituted by the following: *Pursuant to s 11 of the Child Offender (Offender Prohibition Order) Act* 2008 the appellant is prohibited from: i. Accessing the internet; and ii. Processing any device, for example, a smartphone which is capable of accessing the internet or any device capable of accessing social media platforms such as Instance Relay Chat Services, Facebook and/or Twitter. 3. This order will be in place for five years from today**
CATCHWORDS:	CRIMINAL LAW – APPEAL - Child Protection (Offender Prohibition Order) Act 2008 – section 52 – where an Offender Prohibition Order was made against the appellant in the Magistrates Court – whether the learned magistrate failed to take into account mandatory considerations imposed by the Child Protection (Offender Prohibition Order) Act 2008 – whether the learned magistrate failed to address the question of whether the appellant represented an unacceptable risk – whether a failure to give reasons amounts to an appealable error. Child Protection (Offender Prohibition Order) Act 2008, s 6, s 8, s 9, s 11 Child Protection (Offender Reporting) Act 2004, s 9 Criminal Code (Cth), s 474.19 Criminal Code (Qld), s 210, s 218A, s 228A Dangerous Prisoners (Sexual Offenders) Act 2003 Allesch v Maunz (2000) 203 CLR 172 Bowden v ACI Operations P/L [2003] QCA 293 CDJ v VAJ (1998) 197 CLR 172 Mifsud v Campbell (1991) 21 NSWLR 725
COUNSEL:	J W Fenton for the appellant D Holliday for the respondent
SOLICITORS:	Legal Aid Office Queensland for the appellant Queensland Police Service for the respondent