R v HYQ

Case [2024] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v HYQ [2024] QCA 151

PARTIES:

R
v
HYQ
(applicant)

FILE NO/S:

CA No 34 of 2024
SC No 400 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 February 2024 (Williams J)

DELIVERED ON:

23 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2024

JUDGES:

Bowskill CJ and Dalton JA and Wilson J

ORDERS:

1.   The applicant has leave to appeal the sentences imposed on 12 February 2024.

2.    The appeal is allowed, and the sentences imposed on 12 February 2024 are set aside.

3.   The applicant is convicted of counts 1 and 3, but not further punished.

4.   The convictions are not recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where, at a time in 2000 or 2001, the applicant supplied a drug to her adolescent cousin and facilitated his involvement in prostitution – where the applicant was not charged in relation to those offences until more than 20 years later – where the applicant pleaded guilty to the offences and was sentenced, in February 2024, to six months’ imprisonment for procuring her cousin to engage in prostitution and a concurrent three months’ imprisonment for supplying drugs to him, with both sentences wholly suspended for six months and convictions recorded – where the learned sentencing judge accepted that the applicant’s case involved exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992, such that the applicant was not required to serve an actual term of imprisonment – where the applicant contends that, having regard to her circumstances at the time of the offending, the subsequent years of significant rehabilitation, and the effect the charges already had on her employment and living arrangements, the court ought to have imposed a sentence that did not involve the recording of a conviction – whether the sentencing judge erred by giving insufficient regard to the applicant’s mental state and the role it played in the applicant’s offending – whether the sentencing judge erred by giving insufficient weight to rehabilitation as a purpose of imposing sentence or by otherwise misapplying the principle relating to rehabilitation – whether the sentencing judge erred by adopting a two-step approach in arriving at the sentence

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 3(b), s 9(1)(a), s 9(1)(b), s 9(2), s 9(4), s 9(6), s 12(2)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 17, s 18, s 176K, s 177, s 180, s 221(2)(b), s 226, s 295, s 296, s 298, sch 7

Cadzow v The Queen [2020] SASCFC 108, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Adam (2022) 10 QR 343; [2022] QCA 41, cited
R v Bell [1982] Qd R 216; [1981] QSCCCA 62, cited
R v Carey[2024] QCA 69

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Details
AGLC
R v HYQ [2024] QCA 151
Case
[2024] QCA 151
Decision Date

CaseChat Overview and Summary

In the case of R v HYQ, the applicant appealed against her sentences which were imposed following her guilty pleas to charges of supplying a drug to her cousin and facilitating his involvement in prostitution. The offences occurred between 2000 and 2001, and the applicant was not charged until more than 20 years later. She was sentenced in February 2024 to six months' imprisonment for procuring her cousin to engage in prostitution and a concurrent three months' imprisonment for supplying drugs to him, with both sentences wholly suspended for six months and convictions recorded. The applicant argued that the sentencing judge erred in various respects, including by giving insufficient regard to her mental state at the time of the offending, by giving insufficient weight to rehabilitation as a purpose of imposing sentence, and by adopting a two-step approach in arriving at the sentence.

The court was required to decide whether the sentencing judge erred in the way they imposed the sentences. The court considered the arguments put forward by both parties and examined the relevant legislation and case law. The court found that the sentencing judge did err in several respects, including by not sufficiently considering the applicant’s mental state and the significant rehabilitation she had achieved over the years. The court also found that the sentencing judge erred by not adequately considering the impact a recorded conviction would have on the applicant’s employment and living arrangements.

The court allowed the appeal and set aside the sentences imposed on 12 February 2024. The applicant was convicted of counts 1 and 3, but not further punished. The convictions were not recorded. The court's decision highlights the importance of considering an offender's mental state and the extent of their rehabilitation when imposing a sentence, as well as the impact a recorded conviction may have on their future.

Orders

Orders of the court

1. The applicant has leave to appeal the sentences imposed on 12 February 2024.

2. The appeal is allowed, and the sentences imposed on 12 February 2024 are set aside.

3. The applicant is convicted of counts 1 and 3, but not further punished.

4. The convictions are not recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That submission was correct. The application regime under the Working with Children (Risk Management and Screening) Act 2000 (Qld) is complex. However, for present purposes it is sufficient to note that a person convicted of a disqualifying offence is a “disqualified person” (s 17). For this purpose, the person is convicted, whether or not the conviction is recorded.[6] However, if an imprisonment order is made, they are a “relevant disqualified person” (s 18). A “disqualified person” may not make a “working with children application” (s 176K), unless they obtain an “eligibility declaration” (s 177). To obtain an “eligibility declaration” the person must go through the same process as is involved in applying for a working with children clearance (s 180(2) and (3)). Relevantly, to refuse an eligibility declaration, the chief executive needs to be satisfied “it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person” (s 221(2)(b) and s 226[7]). A “relevant disqualified person” cannot obtain an eligibility declaration (s 180(1)(b)).[6]The word “conviction” is defined in schedule 7 to the Act to mean a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.[7]Section 226(2) of the Act sets out the things the chief executive must have regard to, in deciding whether or not there is an exceptional case for a person who has been convicted of an offence – including the nature of the offence, when it was committed, and the penalty imposed by the court and the court’s reasons.The sentencing decision below At first instance, the prosecutor submitted that the “key feature” of this case is “the breach of trust”. He noted that the offending had a very serious effect on the complainant. The prosecutor submitted that the seriousness of the offending and the denunciation required for it would lead the sentencing judge to impose a sentence of imprisonment, in the order of 18 months. It was also submitted, however, that given the effluxion of time and demonstrated rehabilitation, it would be open to wholly suspend that sentence. In support of the submission as to denunciation, the prosecutor relied upon the decision of R v Crabb [2014] QCA 229. On behalf of the applicant, it was submitted that there were a number of features that “distinguish her quite drastically from all the authorities and put her squarely into a position where, whilst ordinarily features like denunciation [and general and personal deterrence] … might carry weight, [they] do not carry weight in this case”. The features emphasised were the mental health capacity issues affecting the applicant at the time of the offending;[8] the more than 23 years that had passed and the almost complete rehabilitation of the applicant over that period;[9] the significant impact a recorded conviction would have on her employment, and the effect of that on her sustained rehabilitation. It was submitted that the Court would impose either a good behaviour bond or a fine, with no conviction recorded.[8]Referring to R v Yarwood [2011] QCA 367.[9]Referring to R v Bell [1982] Qd R 216 and R v Illin (2014) 246 A Crim R 176.

Ratio Decidendi

Legal Principle Established

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