R v James

Case [2024] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v James [2024] QCA 142

PARTIES:

R
v
JAMES, Benjamin Kaleb
(applicant)

FILE NO/S:

CA No 16 of 2024
DC No 1471 of 2023
DC No 2567 of 2023
DC No 2580 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 20 December 2023 (Loury KC DCJ)

DELIVERED ON:

6 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2024

JUDGES:

Dalton and Boddice JJA and Davis J

ORDER:

Application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the sentencing judge was referred to two comparable cases – where the sentencing judge arguably misidentified the maximum penalty relevant to the comparables – where the sentencing judge arguably considered the maximum penalty for making child exploitative material to be five years’ imprisonment – where the maximum penalty was instead 10 years’ imprisonment – whether the sentencing judge disregarded the comparables given the disparity between the perceived maximum penalty and the maximum penalty at sentencing – whether the sentencing judge erroneously disregarded the comparables – whether the sentencing judge ought to have given more consideration to the comparables when sentencing the applicant – whether the alleged misidentification of the maximum penalty of the comparables infected the sentence imposed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 19 counts of making child exploitation material, one count of possessing child exploitation material and one charge of failing to comply with Child Protection (Offender Reporting) Act 2004 (Qld) reporting conditions – where the offending occurred during the operational period of suspended sentences – where the suspended sentences were activated – where the applicant was sentenced to sentences of an effective five years, five months and 12 days imprisonment with a parole eligibility after two years – where the sentences were to be served cumulatively upon the activated suspended sentences – whether the sentences are manifestly excessive in all the circumstances

Criminal Code (Qld), s 228B, s 228D

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26, followed
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26, followed
R v GBD (2018) 275 A Crim R 551; [2018] QCA 340, followed
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, followed
R v Hatahet (2024) 98 ALJR 863; [2024] HCA 23, considered
R v Kilic (2016) 259 CLR 256; [2016] HCA 48, followed
R v MBM (2011) 210 A Crim R…

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Details
AGLC
R v James [2024] QCA 142
Case
[2024] QCA 142
Decision Date

CaseChat Overview and Summary

In the case of R v James, the appellant was convicted of various offences, including making child exploitation material, possessing such material, and failing to comply with reporting conditions under the Child Protection (Offender Reporting) Act 2004 (Qld). The appellant was sentenced to an effective term of five years, five months, and 12 days imprisonment, with parole eligibility after two years. The appellant challenged the sentence on two grounds, arguing that the sentencing judge erred in determining the sentence based on incorrect maximum penalties for the comparable cases and that the sentence imposed was manifestly excessive.

The court examined the first ground of appeal, which pertained to the sentencing judge's reliance on comparable cases. The court found that the sentencing judge had arguably misidentified the maximum penalty relevant to the comparable cases. However, the court concluded that any error in identifying the maximum penalty did not affect the judge's reasoning, as the comparables did not form part of the consideration of the appropriate sentences. Therefore, the court dismissed ground 1.

On the second ground of appeal, the appellant sought to adduce fresh evidence concerning the prospect of deportation to New Zealand. The court acknowledged that the prospect of deportation might be relevant to the sentence if it made the period of incarceration more onerous or deprived the offender of the opportunity to permanently reside in Australia. However, the court found that the appellant had not established that the prospect of deportation would result in hardship or affect the efficacy of court-ordered parole. Therefore, the court concluded that the sentence was not manifestly excessive.

The court dismissed the application for leave to appeal against the sentence. The cumulative effect of the sentences imposed and the various orders made resulted in an effective head sentence of seven years' imprisonment, with eligibility for parole after approximately three and a half years' imprisonment.

Orders

Orders of the court

Application for leave to appeal against sentence is dismissed.

Background

Background to the litigation

In summary, the cumulative effect of the sentences imposed in 2021 and 2023 and the various orders made is:(a)an overall effective head sentence of seven years’ imprisonment; and(b)eligibility for parole after service of approximately three and a half years’ imprisonment.Facts of the offending The 18th of December 2022 was a Sunday. On this Sunday in the height of summer, there were many young children in the area of the Wynnum Esplanade. It is not alleged that the applicant attended the esplanade with a preconceived intention to photograph children. He told police that he went there to exercise. However, he had with him a mobile telephone (which had a camera facility) and a smart watch. The applicant placed his telephone in his back pocket, with the camera pointing outwards. The camera lens was positioned above the top of the applicant’s pocket. He then identified various subjects of interest to which he would then turn his back. In this way, he would aim the camera at the subject and then film the subject by controlling the telephone with the smart watch. The applicant had previously attended the area of the esplanade and suspicious citizens posted images of the applicant on social media. On the day of the offending, he was recognised from these social media posts and a concerned citizen rang police. Police arrived, located him and in due course arrested him. Although the applicant initially made denials to police, he provided the passcode for his mobile telephone and made admissions in a later interview. He told police that he was sexually attracted to young children, both boys and girls. He explained how he positioned his telephone in his back pocket and used his watch to control the filming. He said that he would focus on the genitals of the children. He told police that “normally” when he would photograph children, he would then go to a public toilet, masturbate and delete the footage. On this occasion, he did not have that opportunity as police arrived. He accepted that the photographs that had been posted to social media were photographs of him but asserted that apart from the current offending, he had not filmed any children since he was sentenced to prison in 2021. The particulars of the various images are as follows: The applicant relied on two grounds of appeal namely:1. the sentencing judge erred in determining the sentence on the basis that the comparable cases were decided when the maximum penalty for making child exploitation material was five years’ imprisonment; and2. the sentence imposed was manifestly excessive.Ground 1: misunderstanding of the comparable cases Sections 228A (involving child in making child exploitation material), 228B (making child exploitation material), 228C (distributing child exploitation material) and s 228D (possessing child exploitation material) of the Code were all enacted in 2005.[7] Those sections criminalise various activities concerning “child exploitation material” which is defined by s 207A as:“child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years–(a)in a sexual context, including for example, engaging in a sexual activity; or(b)in an offensive or demeaning context; or(c)being subjected to abuse, cruelty or torture.”[7]Criminal Code (Child Pornography and Abuse) Amendment Act 2005.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Her Honour then observed:“In accumulating the sentence, I must have regard to the whole period of imprisonment that you will be subject to. As I have indicated, the comparable decisions do not provide me any guidance as to what the appropriate sentence should be. Had I been sentencing you without having to deal with the suspended sentence, I would have considered a sentence in the order of four to five years’ imprisonment would have been appropriate for this offending. But I will moderate that, because I intend to impose a cumulative sentence, to three years’ imprisonment.” (emphasis added) In my view, a fair reading of the reasons leads to the inevitable conclusion that any error which may have been made as to the applicable maximum penalties at the time of sentence in the comparable cases has not affected her Honour’s reasoning, as the two comparatives in the end, formed no part of her Honour’s consideration of the appropriate sentences. It follows that there is no substance in ground 1.Ground 2: the sentence is manifestly excessive On this ground of appeal the applicant seeks to adduce fresh evidence. That evidence concerns the question of whether the applicant will be deported to New Zealand because of the current convictions. It is said that he will suffer hardship as a result of deportation and that is relevant to sentence. There is a line of authority in this Court to the effect that the prospect of deportation may be relevant to sentence. In R v GBD[43], the Court followed its earlier decision in R v Norris; Ex parte Attorney-General (Qld)[44] and concluded:[43](2018) 275 A Crim R 551.[44][2018] 3 Qd R 420.“[52] R v Norris; Ex Parte Attorney-General (Qld) is authority for the following conclusions:(a)The legislative intent underlying the Migration Act and reflected in s 501CA(6) is that a person who fails the character test and is released from criminal custody would remain in immigration detention whilst revocation of a decision by the Minister to cancel the person’s visa is pursued.(b)Street CJ’s conclusion in R v Chi Sun Tsui that “the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society” is “explained by, and limited to, the statutory context in which it arose and the particular issue which the court was addressing – that of the fixing of a non-parole period” under the New South Wales law applicable in that case.(c)The prospect of deportation may be a relevant factor to be considered in mitigation of a sentence where it makes the period of incarceration more onerous and also where, upon release, the fact of imprisonment will deprive the offender of the opportunity of permanently residing in Australia, providing that the prospect of deportation or its impacts are not merely speculative.(d)Even if the evidence before the sentencing judge does not justify a finding that deportation would harm the offender in either of those two ways, a sentencing judge should take into account when imposing a sentence the relevance of likely deportation on the efficacy of court ordered parole and the potential consequences of that for the offender.(e)A sentencing judge should not adjust a sentence or impose a lesser sentence for the purpose of defeating, avoiding or circumventing the operation of the provisions in the Migration Act.(f)That principle is not infringed by the adjustment of a sentence to take into account the risk of interruption to an offender’s rehabilitation that immigration detention beyond a fixed release date would entail.” (footnotes omitted)

Ratio Decidendi

Legal Principle Established

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