R v Formenton

Case [2018] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Formenton [2018] QCA 77

PARTIES:

R
v
FORMENTON, Alexander Jonathan
(applicant)

FILE NO:

CA No 52 of 2017
DC No 1756 of 2016
DC No 2290 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 February 2017 (Bowskill QC DCJ)

DELIVERED ON:

27 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2017

JUDGES:

Sofronoff P and Fraser JA and Brown J

ORDER:

Application 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 and was sentenced for the Commonwealth offence of using a carriage service to menace, harass or cause offence and the State offence of possession of child exploitation material – where the applicant was sentenced for the State offence to 12 months’ imprisonment, wholly suspended for a period of two years – where the applicant seeks to overturn the sentence for the State offence on the basis that it was manifestly excessive – where the applicant submits that the learned sentencing judge erred in sentencing the applicant to imprisonment rather than imposing a community-based order – where the applicant contends that the learned sentencing judge gave insufficient weight to his various mitigating factors – whether a conviction should have been recorded – whether the sentence was manifestly excessive

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Criminal Code (Qld), s 228D
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(6A), s 9(7)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Daw[2006] QCA 386, considered
R v Jones[2011] QCA 147, considered
R v Lovi[2012] QCA 24, considered
R v MBM (2011) 210 A Crim R 317, [2011] QCA 100, considered
R v Murray[2014] QCA 250, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Richardson; ex parte Attorney-General (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, considered

COUNSEL:

P F Richards for the applicant
D Caruana for the Director of Public Prosecutions (Commonwealth)
C N Marco for the Director of Public Prosecutions (Queensland)

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Commonwealth)
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons for judgment of Brown J and the order her Honour proposes.

  2. FRASER JA:  I agree with the reasons for judgment of Brown J and the order proposed by her Honour.

  3. BROWN J:  The applicant is a young man who pleaded guilty to and was sentenced on 24 February 2017 for the following offences:

    (1)Use a carriage service to menace, harass or cause offence (“the Commonwealth Offence”), in relation to which he was released without proceeding to conviction on a $500 recognizance conditioned on:

    (a)being of good behaviour for…

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AGLC
R v Formenton [2018] QCA 77
Case
[2018] QCA 77
Decision Date

CaseChat Overview and Summary

The case of R v Formenton involved an applicant who had pleaded guilty to using a carriage service to menace, harass or cause offence under Commonwealth law, and to the State offence of possession of child exploitation material. The applicant was sentenced to 12 months’ imprisonment, wholly suspended for a period of two years, for the State offence. The applicant sought to overturn the sentence for the State offence, arguing it was manifestly excessive and that the sentencing judge had erred in sentencing him to imprisonment instead of imposing a community-based order. The applicant contended that the judge gave insufficient weight to his mitigating factors, such as his age, lack of criminal history, and engagement in a sex offender's program, which indicated a low risk of reoffending.

The court examined the legal issues of whether the sentence was manifestly excessive or inadequate and if the learned sentencing judge had failed to properly consider the relevant factors. The court considered the maximum penalty for the offence, the applicant’s engagement in the sex offender's program, and the views of the program facilitator that the applicant was at low risk of reoffending. The court also assessed the increase in the maximum penalty for possession of child exploitation material and its impact on sentencing decisions. The applicant argued that the judge gave undue weight to the increased maximum penalty, but the court found that the judge’s approach was consistent with the need to consider the maximum penalty as part of a balanced sentencing decision.

The court concluded that the sentence was not manifestly excessive. It found that the sentencing judge had considered all relevant factors, including the applicant's age, lack of criminal history, engagement in the sex offender's program, and the maximum penalty. The judge had determined that a period of imprisonment was not necessary for general deterrence and that the applicant’s rehabilitation was best served by remaining in the community. While it may have been open to the judge to impose probation instead of a suspended sentence, the imposition of the sentence was not shown to be an error. The court rejected the argument that the judge had given undue weight to the increased maximum penalty, finding that the judge's approach was appropriate and balanced.

The court dismissed the applicant's appeal against the sentence, concluding that the wholly suspended term of imprisonment was appropriate. The court held that the sentencing judge had taken into account all relevant considerations and that the sentence struck the proper balance between the seriousness of the offence and the applicant's rehabilitation.

Orders

Orders of the court

Application refused.

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

While the cases of MBM and Jones involved people who were significantly older, they involved less images than the present case and were imposed at a time when the maximum penalty was less.Conclusion The analysis of the comparable cases does not support a finding that the sentence is manifestly excessive. There is no doubt that cases such as this present a difficult decision for a sentencing judge to make when weighing up all the relevant considerations to determine an appropriate sentence. The applicant is a young man with no criminal history and he and his family have taken active steps to address his offending and ensure that it does not take place in the future. In doing so it was discovered that he appears to suffer from Asperger’s syndrome or some other cognition issues, which at least partly explain some of the factors which led to his offending. His undertaking of the sex offending program with Ms Bardsley appears to have met with success in developing strategies to address his cognitive distortions, maladaptive behaviours and emotional responses and to provide him with a greater understanding of his cycle of offending. As a result, Ms Bardsley concluded that he was at low risk of reoffending and that he now has no criminogenic needs that currently require addressing. Her Honour did take into account the applicant’s age and his engagement in the sex offender’s program with Ms Bardsley, which she stated was greatly to the applicant’s credit, and Ms Bardsley’s view that he was at low risk of re-offending. It is apparent from her Honour’s reasons that she considered the medical evidence, the applicant’s age and lack of criminal history and that he was at low risk of reoffending in the future in determining that general deterrence did not require a period in custody and that the applicant’s rehabilitation was best served by him remaining in the community and continuing to access his relevant assistance. While it may have been open for her Honour to impose probation as opposed to a suspended sentence, it has not been shown to be an error to impose the sentence that was imposed. Her Honour had imposed probation in relation to the Commonwealth offence. As was stated by her Honour however, the offence of possessing CEM is not a victimless crime. The supporting of an industry with respect to CEM material which takes advantage of vulnerable children has been regarded more seriously by the community and by the Parliament in recent years and as a result the maximum penalty has been increased significantly. The suggestion that the sentencing judge gave undue weight to the increased maximum penalty must be rejected. A Court must take into account the maximum penalty for an offence in determining an appropriate sentence. This has been said to be for three reasons: the maximum penalty is what the legislature has legislated; secondly, a maximum penalty invites a comparison between the worst possible case and the case before the Court at the time; and thirdly, because it provides, taken in balance with all of the other relevant factors, a yardstick.[48] That said, the fact that there is an increase in the maximum penalty does not necessarily mean that all such offences committed after the amendment should attract a higher penalty than they previously would have, but it is to be expected that such an increase will produce a general increase in the severity of sentences, rendering earlier cases of little utility as comparable sentencing decisions.[49] Her Honour’s approach was consistent with this and rather than just increasing the penalty automatically due to the change in the maximum penalty, her Honour made reference to it in determining the head sentence and whether a period of imprisonment should be imposed, albeit she particularly relied upon cases decided when the maximum penalty was lower.[48]Markarian v The Queen (2005) 228 CLR 357 at [31], referred to by Fraser JA in R v Murray [2014] QCA 250 at [16].[49]R v Murray at [16], referring in particular to R v CBI [2013] QCA 186 at [19].

Ratio Decidendi

Legal Principle Established

The Crown submits that her Honour took into account all relevant considerations and that the wholly suspended term of imprisonment struck the proper balance between the seriousness of the offence and the applicant’s rehabilitation that showed he was not in need of immediate supervision.Consideration of comparable cases To establish that a sentence is manifestly excessive, the applicant must show that the sentence is “unreasonable or plainly unjust” such that it may be inferred “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[29] The fact that another judge may have imposed a different sentence is not enough. In R v Pham,[30] French CJ, Keane and Nettle JJ stated:“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” (citation omitted)[29]House v The King (1936) 55 CLR 499; [1936] HCA 40.[30](2015) 256 CLR 550 at 559; [2015] HCA 39 at [28]. In R v Lovi,[31] the offender pleaded guilty to 15 counts of using a carriage service to access child pornography and one count of possessing CEM under s 228D of the Criminal Code 1899 (Qld). On the count of possessing CEM (Count 16), the applicant was sentenced to eight months’ imprisonment to be suspended after two months with an operational period of two years. At the time the maximum penalty for possession of CEM was five years. The Court of Appeal found that the sentencing judge’s discretion had miscarried in failing to recognise that the offender in R v Lovi was to be sentenced as a child in relation to one of the offences that were committed when he was between 16 and 17 years old.[31][2012] QCA 24. The offender in that case downloaded 540 images, including images in category 4 in respect of females between five and seven years old, as well as an image of a female between seven and 10 years old which would be regarded as in category 5. There were a number of movies also found, depicting young females between the ages of seven and 12 engaged in various sexual acts with adults. The offender in R v Lovi was 19 years old at the time of sentencing. He was 16 years old at the time that one of the counts was committed and 17 to 18 at the time of the other offences, in particular Count 16. He had no prior criminal convictions.[32] He had a good work history and a history of unpaid community work. Matters in mitigation were the applicant’s guilty plea, the applicant’s age and his prospect of rehabilitation.[33] At the time of his arrest he was applying to join the Armed Forces.[32]Save he had been ordered to perform 80 hours of community service in relation to a driving offence.[33][2012] QCA 24 at [12].