R v Barany - [2018] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barany [2018] QCA 137

PARTIES:

R
v
BARANY, Simon James
(applicant)

FILE NO/S:

CA No 286 of 2017
DC No 435 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 6 November 2017 (McGinness DCJ)

DELIVERED ON:

26 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of having made available child pornography material using a carriage service – where the applicant had downloaded a folder containing 130 images, some of which were of children aged between six and 10 years old in nude, sexualised poses – where the applicant had downloaded the folder via the software BitTorrent – where the downloading of images via BitTorrent involves the simultaneous uploading of those images to other users on the network – where the applicant was aware of the operation of BitTorrent – where the applicant was sentenced to nine months imprisonment, to be released immediately upon entering into a recognizance in the sum of $1,000 on the condition that he be of good behaviour – where the applicant operates a Neoprene wetsuit manufacturing business that requires him to travel to China – where the applicant travels to visit family in Hungary every year and has a daughter who hopes to study in the United States – where the applicant fears that a recorded conviction will jeopardise his ability to travel for business and leisure – where the applicant submits that no conviction should have been recorded, per s 19B(1) of the Crimes Act 1914 (Cth) – whether the effect of a recorded conviction on the applicant’s travel is such as to engage the discretion under s 19B(1), such that the learned sentencing judge’s decision to record a conviction rendered the sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits that his instructions to his solicitor to submit to the sentencing judge that no conviction should be recorded were not carried out – where the decision not to make a submission that no conviction should be recorded was a decision made for forensic purposes – whether, if nonetheless the decision was not a forensic decision, a conviction might not have been recorded had the submission been made, such that a miscarriage of justice was occasioned by the applicant’s counsel’s omission

Crimes Act 1914 (Cth), s 19B(1)
Criminal Code (Cth), s 474.19(1)

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
Tsiakas v The Queen [2015] NSWCCA 187, cited

COUNSEL:

A J…

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 R v Barany

Details

AGLC: R v Barany [2018] QCA 137
Case: [2018] QCA 137
Decision Date: 26 June 2018

CaseChat Overview and Summary

The case of R v Barany involved an appeal against the sentence imposed by the court. The applicant had pleaded guilty to one count of making available child pornography material using a carriage service. He had downloaded a folder containing 130 images, some of which depicted children aged between six and 10 years old in nude, sexualised poses. The applicant downloaded the folder via the software BitTorrent, which involves the simultaneous uploading of images to other users on the network. The applicant was aware of this process. He was sentenced to nine months imprisonment, to be released immediately upon entering into a recognizance in the sum of $1,000 on the condition that he be of good behaviour. The applicant operates a Neoprene wetsuit manufacturing business that requires him to travel to China. He also travels to visit family in Hungary every year and has a daughter who hopes to study in the United States. The applicant fears that a recorded conviction will jeopardise his ability to travel for business and leisure.

The legal issues the court had to decide included whether the effect of a recorded conviction on the applicant's travel was such as to engage the discretion under section 19B(1) of the Crimes Act 1914 (Cth), and whether the applicant's counsel's omission to make a submission that no conviction should be recorded amounted to a miscarriage of justice. The court had to determine whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate. The court also had to consider whether the applicant's instructions to his solicitor to submit to the sentencing judge that no conviction should be recorded were not carried out, and whether the decision not to make such a submission was a decision made for forensic purposes.

The court held that the applicant's fear that a recorded conviction would jeopardise his ability to travel for business and leisure did not engage the discretion under section 19B(1) of the Crimes Act 1914 (Cth). The court noted that the applicant had not provided any evidence to support his fear that a recorded conviction would jeopardise his ability to travel. The court also held that the applicant's counsel's omission to make a submission that no conviction should be recorded was a decision made for forensic purposes, and that a miscarriage of justice was not occasioned by the omission. The court held that the sentence imposed by the sentencing judge was not manifestly excessive or inadequate. The court therefore refused the application for leave to appeal.

No further orders were made by the court.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Barany [2018] QCA 137
PARTIES:	R v BARANY, Simon James (applicant)
FILE NO/S:	CA No 286 of 2017 DC No 435 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 6 November 2017 (McGinness DCJ)
DELIVERED ON:	26 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2018
JUDGES:	Sofronoff P and Morrison and Philippides JJA
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of having made available child pornography material using a carriage service – where the applicant had downloaded a folder containing 130 images, some of which were of children aged between six and 10 years old in nude, sexualised poses – where the applicant had downloaded the folder via the software BitTorrent – where the downloading of images via BitTorrent involves the simultaneous uploading of those images to other users on the network – where the applicant was aware of the operation of BitTorrent – where the applicant was sentenced to nine months imprisonment, to be released immediately upon entering into a recognizance in the sum of $1,000 on the condition that he be of good behaviour – where the applicant operates a Neoprene wetsuit manufacturing business that requires him to travel to China – where the applicant travels to visit family in Hungary every year and has a daughter who hopes to study in the United States – where the applicant fears that a recorded conviction will jeopardise his ability to travel for business and leisure – where the applicant submits that no conviction should have been recorded, per s 19B(1) of the Crimes Act 1914 (Cth) – whether the effect of a recorded conviction on the applicant’s travel is such as to engage the discretion under s 19B(1), such that the learned sentencing judge’s decision to record a conviction rendered the sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits that his instructions to his solicitor to submit to the sentencing judge that no conviction should be recorded were not carried out – where the decision not to make a submission that no conviction should be recorded was a decision made for forensic purposes – whether, if nonetheless the decision was not a forensic decision, a conviction might not have been recorded had the submission been made, such that a miscarriage of justice was occasioned by the applicant’s counsel’s omission Crimes Act 1914 (Cth), s 19B(1) Criminal Code (Cth), s 474.19(1) Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited Tsiakas v The Queen [2015] NSWCCA 187, cited
COUNSEL:	A J…