R v HCC

[2020] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCC [2020] QCA 178

PARTIES:

R
v
HCC
(applicant)

FILE NO/S:

CA No 83 of 2020
DC No 30 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 12 March 2020 (Moynihan QC DCJ)

DELIVERED EX TEMPORE ON:

25 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2020

JUDGES:

Sofronoff P, Mullins JA and Henry J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the recording of convictions for each of counts 1 to 9, order that no convictions be recorded, but otherwise confirm the sentences imposed by the sentencing judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts relating to child pornography – where the applicant was a child at the time of the offending – where the applicant was sentenced when he was an adult at the date of sentencing, but he was sentenced on the basis he was a child – where the sentencing judge accepted that the applicant had the developmental age of an eight year old at the time of the offending – where convictions were recorded on all counts – whether the sentence was manifestly excessive because convictions were recorded

Youth Justice Act 1992 (Qld), s 183, s 184

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

COUNSEL:

A C Thomas for the applicant
D Caruana for the respondent

SOLICITORS:

Hall & Co Solicitors for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

MULLINS JA:  The applicant pleaded guilty on 11 February 2020 in the Childrens Court of Queensland, constituted by a District Court Judge, to nine counts.  They were using a carriage service to access child pornography material (count 1); using a carriage service to transmit pornography material (counts 2 and 3); using a carriage service to cause child pornography material to be transmitted to self (counts 4 to 6); using a carriage service to solicit child pornography material (count 7); using a carriage service to make available child pornography material (count 8); and possessing child exploitation material (count 9).

On 12 March 2020, the applicant was sentenced to a conditional release order under s 220 of the Youth Justice Act 1992 (Qld) (the Act). For counts 1 to 8, whereby the applicant was ordered to be detained for 12 months, but that period of detention was suspended immediately, the applicant was released from detention and, pursuant to s 221 of the Act, the applicant was ordered to participate in a program as directed by the chief executive for three months. The applicant was sentenced to a probation order of two years in respect of count 9. A special condition for the probation order was imposed, that the applicant attend offence specific treatment with the Griffith Youth Forensic Service or an alternative service provider as directed, and comply with all reasonable requirements of the program and maintain a rate of progress that was satisfactory to the treatment program. Convictions were recorded on all counts.

The applicant applies for leave to appeal against the sentences on the sole ground that the recording of convictions rendered the sentences manifestly excessive in all the circumstances and, in particular, the learned sentencing judge gave insufficient weight to all the circumstances of the case, including those set out in s 184 of the Act.

The applicant was born in 2001 and aged between 15 and 16 years old when the offending was committed between 6 April and 19 December 2017.  The applicant was residing with his parents when the police executed a search warrant at their residence and seized the applicant’s electronic devices.  The applicant provided account access information in relation to them.

The applicant had turned 18 years old by the time police issued him with a notice to appear.  When he appeared on 10 June 2019 in the Childrens Court, he was granted bail with conditions.  He had no prior convictions and complied with the bail conditions for the period of nine months prior to sentence.

Despite almost 18 months between the seizure of the applicant’s devices and the applicant’s first appearance in Court, there was no suggestion of any further offending by the applicant.  The applicant was sentenced on the basis he was a child under the provisions of the Act, as the sentencing judge was satisfied there had been undue delay on the part of the prosecution in starting or completing the proceeding.

Counts 1 to 8 are Commonwealth offences. It was common ground at the sentencing hearing that s 20C of the Crimes Act 1914 (Cth) enabled the applicant to be sentenced under the Act. The sentencing judge adopted the summary of the description of the offending that had been set out in the respondent’s submissions which was as follows:

The offending involved the applicant:

Accessing 15 video and image files depicting the child pornography material and this material was accessed via four different online platforms over a nine-month period.

Transmitting 60 image files depicting child pornography material which was transmitted via two different online platforms over a one-week period and was categorised as comprising images from the Child Exploitation Tracking System (CETS) categories 1 to 4.

Causing 14 other online users to transmit 823 image and video files depicting child pornography to him which was accessed via three different online platforms over a six-month period and categorised as comprising images from CETS categories 1 to 5.

Soliciting child pornography material from seven other online users on 13 occasions over a six-month period.

Communicating with multiple other online users with a similar sexual interest in children by engaging in sexualised chat and trading material including discussing their sexual arousal to the material and discussing engaging in sex acts on children.

Using an online chat platform to become both a member and administrator of a group created to trade child pornography material.

Making available three video files depicting child pornography material to 45 other users of an online child pornography group.  This material was categorised as comprising images from CETS categories 2 and 3.

Possessing 1,226 image and video files depicting child exploitation material across five electronic devices which were categorised per the CETS scale as follows: 456 files of category 1, comprising 284 images and 172 videos; 234 files of category 2, comprising 38 images and 196 videos; 154 files of category 3, comprising 76 images and 78 videos; 351 files of category 4, comprising 39 images and 312 videos; 23 files of category 5, comprising 7 images and 16 videos and 8 files of category 6, comprising 8 images.

Apart from the applicant’s antecedents and the description of the offending, the sentencing remarks include the following.  This was not a victimless crime as conduct like the applicant’s conduct drives the demand and perpetuates the exploitation of children.  The applicant was “very young” at the time of the offending.  He expressed remorse and cooperated with the authorities, making relevant admissions to police.  The psychologist, Mr Stoker, was of the opinion that the applicant had developed mental delays and diagnosed a language disorder.  As a consequence, the applicant was bullied at school, had few friends and very poor self-esteem.  He had little knowledge concerning sexuality and was addicted to online gaming.  The applicant has the development age of an eight year old, so it is very difficult to determine if he has paedophilic traits.  The author of the pre-sentence report ordered by the Court drew conclusions about the factors contributing to the applicant’s offending that was similar to Mr Stoker’s opinion in respect of learning difficulties, bullying, social isolation, seeking friendship online and minimal exposure to sexual education, but also included the factors of “lack of supervision around internet use in the family home, being a target of online child exploitation material perpetrators and a desire for sexual gratification”.

The sentencing judge expressly took into account that the applicant himself was groomed and encouraged by others online.  On the sentencing hearing, the prosecutor sought a period of detention with the applicant’s release on a conditional release order and a probation order.  The applicant’s counsel did not submit to the contrary.

Where their submissions differed was that the prosecutor submitted convictions ought to be recorded, but the applicant’s counsel submitted that even though to record a conviction would be within the sound exercise of discretion, the discretion should be exercised not to record a conviction.

The sentencing judge did not consider that a restorative justice process was appropriate and was satisfied that, balancing the relevant considerations and taking into account the entire criminality, no other sentence than detention was appropriate in the circumstances of the case.  The sentencing judge’s reasons for recording convictions were:

“The ordinary position is that convictions are not recorded, however, I take into account the serious nature of the offences, your young age and your lack of any previous convictions and the lack of any evidence the impact the recording of a conviction will have on your chances of rehabilitation generally, or finding or retaining employment would be particularly adverse.  In that event, taking into account those considerations and all the other circumstances, I order that convictions be recorded.”

The applicant accepts the sentencing judge considered the factors set out in s 183 and s 184 of the Act when deciding whether to record the convictions, but submits that the weight given by the sentencing judge to the serious nature of the offences in relation to the circumstances that favoured not recording a conviction, caused the sentencing discretion to miscarry.

The applicant’s counsel submits that the same subjective factors that explained the applicant’s offending favoured strongly that no convictions be recorded, despite the serious nature of the offending.

On the basis the applicant committed a series of very serious child pornography offences over a period of six to nine months, and in the absence of identified error in the sentencing judge’s reasoning, the recording of convictions did not render the sentence manifestly excessive, was the basis of the respondent’s submissions to this Court.

Counsel for the respondent conceded that the applicant was influenced, for some of the offending, by an older co-offender, but that factor did not explain all the offending.  The respondent’s counsel recognised that the applicant suffers from significant developmental difficulties, but submitted on the reports there were reasons to doubt whether he has genuine insight into his offending.  The respondent conceded that the subjective factors were not in favour of recording a conviction, but the seriousness of the offending overwhelmed them.

On this application, the applicant has to overcome the fact that his counsel conceded before the sentencing judge during submissions that the recording of convictions could be within the sound exercise of the sentencing discretion.  The applicant cannot succeed on this application by showing merely that too much weight was placed on the seriousness of the offences, but has to show that the exercise of the discretion resulted in a sentence that was “unreasonable or plainly unjust” as explained in House v The King (1936) 55 CLR 499 at 505.

Both counsel before the sentencing judge relied on comparable authorities that concerned the sentencing of adults for child pornography offences.  They emphasised the seriousness of the offending involving child pornography and particularly transmission based offending, and that the possession of child pornography material creates a market for the continued corruption and exploitation of children.  Sentencing under the Act for offending of that type still has to be considered in conjunction with the youth justice principles and the other principles and considerations set out in s 150 of the Act.

When Mr Stoker did his assessment of the applicant on 26 February 2020, for the purpose of assessing whether there were paedophilic traits in his personality, even though the applicant was by then 18 years old, Mr Stoker observed that he presented “both psychologically and emotionally with the developmental age of an eight year old”.  The sentencing judge accepted that opinion.

When that is taken into account with the other findings that the applicant was groomed and encouraged by others online, even in the absence of direct evidence on the impact of the recording of a conviction on the applicant’s chances of rehabilitation generally, or finding or retaining employment, all the circumstances of the case did not justify the recording of convictions and the sentencing discretion miscarried.

The concession by the applicant’s counsel before the sentencing judge that the recording of convictions was within the sound exercise of the sentencing discretion, was made in error and the making of that concession no doubt caused the error on the part of the sentencing judge in concluding that the recording of convictions was within the exercise of the sentencing discretion.

I consider the following orders should be made: (1) Grant leave to appeal.  (2) Allow the appeal.  (3) Set aside the recording of convictions for each of counts 1 to 9, order that no convictions be recorded, but otherwise confirm the sentences imposed by the sentencing judge.

HENRY J:  I agree with the proposed orders, both for the reasons given by Mullins JA and because of the gross delay of one year and five months in the Commonwealth making its decision to charge someone who had been 15 and 16 at the time of the offending.

While the gross delay is more obviously relevant to determining the primary component of the sentence, it also has some relevance to whether a conviction should be recorded. A consequence of recording a conviction here is that, if it is not revived, it will be five years from the date the conviction was recorded before it becomes non-disclosable pursuant to s 6 Criminal Law Rehabilitation of Offenders Act 1986 (Qld). The reach of that period into the applicant’s early adulthood will be more prolonged than it would have been because of the gross delay. Early adulthood is a very influential era in shaping a person’s future career and employment prospects.

While the learned sentencing judge expressly inferred that recording a conviction would have an adverse impact upon the applicant’s chances of finding or retaining employment, he did not allude to how the reach of that adverse impact into an era of such importance to future career and employment prospects would be more prolonged than it would have been but for the gross delay.  While by no means a determinative consideration in its own right, the gross delay was nonetheless one of the collection of circumstances of the case which should have compelled the conclusion that a conviction should not be recorded.

Finally, I note that the concession of defence counsel below was made at a time after the learned sentencing judge had indicated he was not minded to record a conviction.  Against that background, it can be understood why counsel may not have foreseen the significance of the concession.

SOFRONOFF P:  I agree with the reasons of Justice Mullins and the reasons of Justice Henry.  The orders of the Court will be: (1) Grant leave to appeal.  (2) Allow the appeal.  (3) Set aside the recording of convictions for each of counts 1 to 9.  Order that no convictions be recorded, but otherwise confirm the sentences imposed by the sentencing judge.