R v MCA - [2014] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCA [2014] QCA 47

PARTIES:

R
v
MCA
(applicant)

FILE NO/S:

CA No 261 of 2013
DC No 71 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

21 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2014

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant committed two offences of indecent treatment of a child under 16, each with the aggravating circumstance that the child was under 12 – where the primary judge did not impose actual custody but recorded a conviction – whether the primary judge erred in recording a conviction – relevance of the reporting obligations and restrictions under the Child Protection (Offender Reporting) Act 2004 and their effect on the applicant’s social wellbeing – relevance of the applicant’s future levels of risk of re-offending

Penalties and Sentences Act 1992 (Qld) s 12(1), s 12(2), s 13

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, distinguished
R v Rogers[2013] QCA 192, considered

COUNSEL:

D Shepherd for the applicant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

FRASER JA: The applicant pleaded guilty to two offences of indecent treatment of a child under 16 years of age with the circumstance of aggravation that the child was under 12 years of age. In relation to each count the applicant was sentenced to 18 months probation upon conditions including that he undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice as may reasonably be required by an authorised Corrective Services Officer to assist him to overcome any disposition and/or predilection for committing sexual offences against children to the extent that it results in anti-social behaviour and conduct. Convictions were recorded for both offences. The applicant has applied for leave to appeal against sentence on the ground that the sentencing judge erred in exercising his discretion to record convictions, rendering the sentence manifestly excessive in all the circumstances.

At the hearing of the application the respondent applied for an adjournment in order to adduce evidence in relation to the applicant’s performance under the terms of the probation orders. The respondent acknowledged that the foreshadowed evidence would become relevant only if the Court granted the application for leave to appeal, allowed the appeal, and re-sentenced the applicant afresh. The Court then proceeded to hear submissions limited to the question whether the application for leave to appeal against sentence should be granted, on the footing that, if the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MCA

Details

AGLC: R v MCA [2014] QCA 47
Case: [2014] QCA 47
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of R v MCA concerns an appeal against the conviction of the applicant, who pleaded guilty to two counts of indecent treatment of a child under the age of 16, with the additional aggravation that the child was under 12 at the time of the offence. The primary judge recorded a conviction but did not impose actual custody. The applicant appealed against this conviction, arguing that the primary judge erred in recording a conviction under these circumstances. Central to the appeal were the implications of the Child Protection (Offender Reporting) Act 2004, which imposes reporting obligations and restrictions on the applicant, and the impact these had on the applicant's social wellbeing and future risk of re-offending.

The primary legal issue before the court was whether the primary judge had erred in recording a conviction when no actual custodial sentence was imposed. The court needed to consider the relevance of the reporting obligations and restrictions under the Child Protection (Offender Reporting) Act 2004, and how these affected the applicant's social wellbeing. Furthermore, the court had to evaluate the relevance of the applicant's future levels of risk of re-offending in determining whether the recording of a conviction was appropriate. The applicant argued that these factors should have influenced the primary judge's decision to record a conviction without imposing a custodial sentence.

The court found that the primary judge did not err in recording a conviction. It held that the recording of a conviction was justified given the serious nature of the offences committed. The court emphasised that the imposition of a custodial sentence was not the sole determinant of a conviction's validity. The obligations and restrictions under the Child Protection (Offender Reporting) Act 2004, while significant, did not preclude the primary judge from recording a conviction. The court also found that the applicant's future risk of re-offending did not negate the appropriateness of recording a conviction. The court concluded that the primary judge had correctly balanced all relevant considerations in reaching the decision to record a conviction.

The court refused the application for leave to appeal against sentence, upholding the primary judge's decision. The court found no error in the primary judge's assessment of the seriousness of the offences and the appropriate response to the applicant's offending. The reporting obligations and restrictions under the Child Protection (Offender Reporting) Act 2004 were deemed relevant but insufficient to alter the outcome of the conviction. The court's decision reinforced the principle that a conviction can be appropriately recorded even when a custodial sentence is not imposed, particularly in cases involving serious offences against children.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MCA [2014] QCA 47
PARTIES:	R v MCA (applicant)
FILE NO/S:	CA No 261 of 2013 DC No 71 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	21 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2014
JUDGES:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant committed two offences of indecent treatment of a child under 16, each with the aggravating circumstance that the child was under 12 – where the primary judge did not impose actual custody but recorded a conviction – whether the primary judge erred in recording a conviction – relevance of the reporting obligations and restrictions under the Child Protection (Offender Reporting) Act 2004 and their effect on the applicant’s social wellbeing – relevance of the applicant’s future levels of risk of re-offending Penalties and Sentences Act 1992 (Qld) s 12(1), s 12(2), s 13 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, distinguished R v Rogers[2013] QCA 192, considered
COUNSEL:	D Shepherd for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent