R v CCF - [2018] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCF [2018] QCA 285

PARTIES:

R
v
CCF
(applicant)

FILE NO/S:

CA No 93 of 2018
DC No 364 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 21 March 2018 (Farr SC DCJ)

DELIVERED ON:

Date of Orders: 18 October 2018
Date of Publication of Reasons: 23 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2018

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

Orders delivered 18 October 2018:

1.   Leave to appeal granted.

2.   Allow the appeal.

3.   Vary the order made on count 2 of the indictment by ordering that a conviction not be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of two offences of indecently dealing with a child under 16 years – where the applicant was aged 16 at the time of the first offence and was 17 or 18 at the time of the second offence – where the complainant was the same person for both offences and was about five years younger than the applicant – where the applicant was convicted and sentenced approximately 20 years after the offending occurred – where the sentencing judge ordered that no conviction be recorded in relation to the first offence, but that a conviction be recorded in relation to the second offence – where the applicant sought leave to appeal only in relation to the sentence imposed for the second offence – where the sentencing judge was obliged to consider the matters prescribed by s 12(2) Penalties and Sentences Act 1992 (Qld) in deciding whether or not to record a conviction, and those matters include the impact that recording a conviction would have on the offender’s economic or social wellbeing or chances of finding employment – where the applicant would face disadvantage in his profession as a nursing assistant in the event that he is unable to obtain a blue card – where the sentencing judge did not consider the effect of a recorded conviction on the applicant’s employability – whether the sentencing judge should have ordered that a conviction be recorded in relation to the second offence

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 12(2)
Youth Justice Act 1992 (Qld), s 144(2)

COUNSEL:

K E McMahon for the applicant
M J Hynes for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of McMurdo JA.
MORRISON JA: I have had the benefit of reading the reasons of McMurdo JA. Those reasons reflect my own as to why I joined in the orders made at the hearing.
McMURDO JA: At the end of the hearing of this case, the Court ordered that leave to appeal be granted, the appeal be allowed, and that the orders made for…

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 CCF

Details

AGLC: R v CCF [2018] QCA 285
Case: [2018] QCA 285
Decision Date: 23 October 2018

CaseChat Overview and Summary

In the case of R v CCF, the applicant appealed against the sentence imposed for the offence of indecently dealing with a child under 16 years. The applicant was convicted of two offences, the first occurring when he was 16 years old and the second when he was 17 or 18. The complainant was the same person in both instances and was about five years younger than the applicant. The applicant was sentenced approximately 20 years after the offences were committed. The sentencing judge decided not to record a conviction for the first offence but did record a conviction for the second offence. The applicant sought leave to appeal only in relation to the sentence imposed for the second offence.

The primary legal issue before the court was whether the sentencing judge should have ordered that a conviction be recorded in relation to the second offence. The court noted that the sentencing judge was required to consider specific matters under section 12(2) of the Penalties and Sentences Act 1992 (Qld) in deciding whether to record a conviction, including the impact on the offender’s economic or social wellbeing or chances of finding employment. The court found that the sentencing judge failed to consider the effect of a recorded conviction on the applicant's employability, particularly in his profession as a nursing assistant where a blue card is necessary. Given that the applicant could face significant disadvantage in obtaining a blue card with a recorded conviction, the court concluded that the sentencing judge should have taken this into account when deciding whether to record a conviction.

In light of the above, the court granted leave to appeal and allowed the appeal. The court varied the order made on count 2 of the indictment by ordering that a conviction not be recorded. This decision ensures that the sentencing judge's failure to consider the potential impact on the applicant's employment prospects is rectified, aligning with the statutory requirements under section 12(2) of the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

Orders delivered 18 October 2018:

1. Leave to appeal granted.

2. Allow the appeal.

3. Vary the order made on count 2 of the indictment by ordering that a conviction not be recorded.

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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CITATION:	R v CCF [2018] QCA 285
PARTIES:	R v CCF (applicant)
FILE NO/S:	CA No 93 of 2018 DC No 364 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 21 March 2018 (Farr SC DCJ)
DELIVERED ON:	Date of Orders: 18 October 2018 Date of Publication of Reasons: 23 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2018
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDERS:	Orders delivered 18 October 2018: 1. Leave to appeal granted. 2. Allow the appeal. 3. Vary the order made on count 2 of the indictment by ordering that a conviction not be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of two offences of indecently dealing with a child under 16 years – where the applicant was aged 16 at the time of the first offence and was 17 or 18 at the time of the second offence – where the complainant was the same person for both offences and was about five years younger than the applicant – where the applicant was convicted and sentenced approximately 20 years after the offending occurred – where the sentencing judge ordered that no conviction be recorded in relation to the first offence, but that a conviction be recorded in relation to the second offence – where the applicant sought leave to appeal only in relation to the sentence imposed for the second offence – where the sentencing judge was obliged to consider the matters prescribed by s 12(2) Penalties and Sentences Act 1992 (Qld) in deciding whether or not to record a conviction, and those matters include the impact that recording a conviction would have on the offender’s economic or social wellbeing or chances of finding employment – where the applicant would face disadvantage in his profession as a nursing assistant in the event that he is unable to obtain a blue card – where the sentencing judge did not consider the effect of a recorded conviction on the applicant’s employability – whether the sentencing judge should have ordered that a conviction be recorded in relation to the second offence Evidence Act 1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 12(2) Youth Justice Act 1992 (Qld), s 144(2)
COUNSEL:	K E McMahon for the applicant M J Hynes for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent