R v Jason

[2021] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jason [2021] QCA 151

PARTIES:

R
v
JASON, Peter James
(applicant)

FILE NO/S:

CA No 39 of 2021
DC No 297 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 2 February 2021 (Kent QC DCJ)

DELIVERED ON:

Date of Order: 11 June 2021
Date of Publication of Reasons: 23 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2021

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDER:

Order delivered: 11 June 2021

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty on 9 February 2021 to one count of possessing child exploitation material – where the applicant was sentenced to two years imprisonment with a parole eligibility date fixed at 8 August 2021 – where the applicant was previously sentenced on one count of using a carriage service to make available child pornography material – where the applicant appeals the sentence on the ground that imprisonment should be suspended after any time served instead of parole eligibility – where the applicant submits that the sentence was manifestly excessive having regard to the significant delay before the Parole Board in considering applications and in requiring the completion of courses, which may result in the applicant having to serve his full term of imprisonment – whether the sentence was manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
B J Jackson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  The applicant pleaded guilty to one count of possession of child exploitation material and, on 9 February 2021, Kent QC DCJ sentenced him to imprisonment for two years and set a parole eligibility date on 8 August 2021.  One day of pre-sentence custody was declared.  The applicant seeks leave to appeal on the ground that the sentence was manifestly excessive.

2. The offence came to the attention of authorities because the applicant left his bag behind in a supermarket trolley.  Inspection of its contents revealed thousands of electronic child exploitation images which ranged from category 1 (the majority of images and movies) but which spanned all categories up to category 6.  The applicant had been sentenced previously in December 2014 to imprisonment for 15 months for one offence of using a carriage service to make available child pornography material.  He was ordered to be released on recognisance after serving three months.  On the same occasion he was sentenced to imprisonment, wholly suspended, for the same offence as the present one.  The images and movies in that offence included material in the most serious of categories.

3. At sentencing both counsel submitted that a period of actual incarceration had to be served.  The prosecution submitted that a sentence of “not less than 2 years” imprisonment should be imposed with parole eligibility at around the one third mark.  Defence counsel did not “cavil” with the proposed head sentence and submitted that any period of incarceration should be followed by a suspension of the imprisonment rather than parole eligibility.

4. On this appeal the applicant does not challenge the propriety of the head sentence but submitted that the sentence was too severe because the sentence should have been suspended after a period of incarceration.  The applicant pointed to several matters which, he submitted, would justify the grant of leave to appeal.  None of them do and the only points that merit actual discussion are the following.

5. The applicant submitted that there is now a notorious delay of several months before an application for parole will actually be considered by the Parole Board.  In addition, it was said that it was likely, or perhaps possible, that the Board will respond to the applicant’s application for parole by requiring him to complete particular courses, yet places on many courses are unavailable due to congestion so that he will have to serve his full term.  Further, the applicant says that living conditions in prison are “deplorable” because of overcrowding.

6. To the extent that such matters are relevant, they are matters that could have been raised at the sentence hearing.  An appeal against sentence is not a chance to make a better case; it is a chance to correct legal and factual error.  None of these matters raise any arguable errors.  They were not mentioned at sentence and, in any event, they are aspects of the realities of imprisonment with which judges are very familiar.  These arguments do not justify the grant of leave to appeal.

7. In any case, the applicant is a mature man who has previously experienced what will happen to him if he accesses or possesses child pornography.  He enjoyed the benefit of a suspended sentence on that first occasion.  He could not reasonably expect a second go at such leniency and, on the contrary, could rightly be regarded as a man who warrants the judgment of the Parole Board whether he ought to be released and as also requiring the supervision afforded by parole if he is released before his term of imprisonment ends.  In short, the sentence was not wrong.

8. For these reasons I joined in making the order on 11 June 2021.

9. MORRISON JA:  I have read the reasons of Sofronoff P.  Those reasons reflect my own for joining in the order made on 11 June 2021.

10. FLANAGAN J:  I agree with Sofronoff P.