R v Daw

Case [2006] QCA 386

SUPREME COURT OF QUEENSLAND

CITATION:

R v Daw [2006] QCA 386

PARTIES:

R
v
DAW, Zachary Charles
(applicant/appellant)

FILE NO/S:

CA No 195 of 2006
DC No 193 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

5 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2006

JUDGES:

Jerrard and Holmes JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.   Application for leave to appeal against sentence allowed

2.   Set aside the sentence imposed below

3. Impose in lieu a probation order for two years on the terms set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) with the additional condition that the applicant undergo such medical, psychiatric or psychological testing and treatment as may be directed by a Corrective Services Officer

4.   The applicant must report within the next three business days to an authorised Corrective Services Officer at Ipswich

5.   A conviction should not be recorded

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – GENERALLY – applicant pleaded guilty to an ex-officio indictment charging him with knowingly possessing child exploitation material – applicant sentenced to nine months imprisonment to be served by way of an Intensive Correction Order and a conviction was recorded – applicant downloaded 58 pornographic images of children from a website – downloads represented a very small quantity of total downloads on his computer – no commercial element to downloads – applicant had no previous convictions – whether sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES – offending at low end of the scale – applicant was a young offender with no previous convictions – recording a conviction would jeopardise his career and chances of success – whether a conviction ought to be recorded having regard to s 12(2) Penalties and Sentences Act 1992 (Qld)

Criminal Code1899 (Qld), s 228D
Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(2), s 93(1)

R v Clifford, unreported, Botting DCJ, DC No 833 of 2006, 3  May 2006, considered
R v Davies, unreported, Ryrie DCJ, DC No 217 of 2006, 9 March 2006, considered
R v Diaz, unreported, Wylie DCJ, DC No 1462 of 2006, 25 May 2006, considered
R v Finch; ex parte A-G (Qld) [2006] QCA 60; CA No 319 of 2005, 10 March 2006, considered
R v Hoch; ex parte A-G (Qld) [2001] QCA 63; CA No 337 of 1997, 26 February 2001, considered
R v Plunkett [2006] QCA 182; CA No 124 of 2006; 29 May 2006, considered

COUNSEL:

S L Kissick…

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Details
AGLC
R v Daw [2006] QCA 386
Case
[2006] QCA 386
Decision Date

CaseChat Overview and Summary

In the case of R v Daw, the applicant appealed against the sentence imposed upon him by the Magistrates' Court. The applicant had pleaded guilty to possessing child exploitation material and was sentenced to nine months imprisonment, to be served via an Intensive Correction Order. The applicant had downloaded 58 pornographic images of children from a website. The appeals court considered whether the sentence was manifestly excessive and whether a conviction should be recorded under section 12(2) of the Penalties and Sentences Act 1992 (Qld).

The court found that the applicant's offending was at the low end of the scale. He was a young offender with no previous convictions. The court considered the impact of recording a conviction on the applicant's career and chances of success. The court found that recording a conviction would jeopardise his future prospects. The court concluded that, given the circumstances, a conviction should not be recorded.

The court allowed the application for leave to appeal against the sentence. The sentence imposed by the Magistrates' Court was set aside. In lieu, a probation order for two years was imposed, in accordance with section 93(1) of the Penalties and Sentences Act 1992 (Qld). The probation order included an additional condition that the applicant undergo any medical, psychiatric or psychological testing and treatment as directed by a Corrective Services Officer. The applicant was required to report to an authorised Corrective Services Officer at Ipswich within three business days. The court also directed that a conviction should not be recorded.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Set aside the sentence imposed below

3. Impose in lieu a probation order for two years on the terms set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) with the additional condition that the applicant undergo such medical, psychiatric or psychological testing and treatment as may be directed by a Corrective Services Officer

4. The applicant must report within the next three business days to an authorised Corrective Services Officer at Ipswich

5. A conviction should 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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