R v Bunton

Case [2019] QCA 214


SUPREME COURT OF QUEENSLAND

CITATION:

R v Bunton [2019] QCA 214

PARTIES:

R
v

BUNTON, Vetea Joseph
(applicant)

FILE NO/S:

CA No 337 of 2018
DC No 40 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence 5 December 2018 (Devereaux SC DCJ)

DELIVERED ON:

Date of Orders: 2 September 2019
Date of Publication of Reasons: 15 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2019

JUDGES:

Sofronoff P and Fraser and Morrison JJA

ORDERS:

Date of Orders: 2 September 2019

1.   Leave to appeal is granted.

2.   Appeal allowed.

3.   Conviction recorded on 5 December 2018 is set aside.

4.   Save as afore said, the remaining orders made by Judge Devereaux are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – RECORDING OF CONVICTION – where the applicant was found to be in possession of child exploitation material – where the applicant pleaded guilty to one charge of knowingly possessing child exploitation material – where the sentence imposed included the recording of the conviction – where the applicant challenges the sentence on the ground that the recording of the conviction is manifestly excessive – where it is contended that the child exploitation material was accessed when the applicant was under eighteen years of age – where it was submitted that the applicant fitted the typology of a “situational hands-off or no contact” offender, and a low danger of reoffending in a sexual way – where it was submitted that the applicant acquired the images out of curiosity and at a time when she was struggling with issues concerning her transgender identity and sexual identity – where it is contended that there was no evidence of entrenched paedophilic tenancies – where the learned sentencing judge was of the opinion that the detrimental impacts on the applicant in having the conviction recorded did not overwhelm the serious nature of the offence – whether the recording of the conviction rendered the sentence manifestly excessive

R v Daw[2006] QCA 386, followed
R v Rogers (2013) 231 A Crim R 290; [2013] QCA 192, followed

COUNSEL:

J Briggs 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 Morrison JA.

  2. FRASER JA:  I agree with the reasons for judgment of Morrison JA.

  3. MORRISON JA:  When the applicant was just over 18 years old, police executed a search warrant at her house and discovered child exploitation material on her mobile phone.  There was a total of 15 images depicting young boys between the age of five years and 16 years, posing naked, performing oral sex or engaging in anal intercourse either with other young people or adults.

  4. The search occurred on 19 January 2016.  The applicant was interviewed that day and released on bail.  On 5 December 2018 the applicant…

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Details
AGLC
R v Bunton [2019] QCA 214
Case
[2019] QCA 214
Decision Date

CaseChat Overview and Summary

The case of R v Bunton involved an applicant who had been found in possession of child exploitation material. The applicant pleaded guilty to one charge of knowingly possessing such material. The sentence imposed included the recording of the conviction, which the applicant subsequently challenged. The appeal was centred on whether the recording of the conviction rendered the sentence manifestly excessive, given the specific circumstances of the case. The applicant argued that the material was accessed when she was under eighteen years of age and that she fitted the typology of a "situational hands-off or no contact" offender, with a low danger of reoffending in a sexual way. It was further submitted that the material was acquired out of curiosity and during a period when the applicant was grappling with issues concerning her transgender and sexual identity. The applicant contended that there was no evidence of entrenched paedophilic tendencies and that the detrimental impacts on her in having the conviction recorded did not overwhelm the serious nature of the offence.

The legal issues before the court were whether the recording of the conviction was an appropriate sentence in light of the applicant's age at the time of the offence, her personal circumstances, and her risk profile. The court was required to determine whether the sentence was manifestly excessive, considering the mitigating factors presented. The court needed to weigh the severity of the offence against the personal circumstances of the applicant, including her age, the circumstances of how the material was accessed, and her risk of reoffending. The primary focus was on whether the recording of the conviction was proportionate to the offence, taking into account all relevant mitigating factors.

The court, after careful consideration, found that the recording of the conviction rendered the sentence manifestly excessive. The court acknowledged the mitigating factors presented, including the applicant's age at the time of the offence, her personal circumstances, and her risk profile. The court determined that the detrimental impacts on the applicant from having the conviction recorded were significant and did not align with the overall circumstances of the case. Consequently, the court allowed the appeal, set aside the conviction recorded on 5 December 2018, and confirmed the remaining orders made by Judge Devereaux. The decision highlights the importance of considering personal circumstances and the risk of reoffending when determining the appropriate sentence for offences involving child exploitation material.

Orders

Orders of the court

Date of Orders: 2 September 2019

1. Leave to appeal is granted.

2. Appeal allowed.

3. Conviction recorded on 5 December 2018 is set aside.

4. Save as afore said, the remaining orders made by Judge Devereaux are otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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