R v Mellor - [2019] QCA 298

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mellor [2019] QCA 298

PARTIES:

R
v
MELLOR, Callum Lloyd
(applicant)

FILE NO/S:

CA No 273 of 2019
DC No 1906 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 October 2019 (Koppenol DCJ)

DELIVERED ON:

Date of Order: 28 November 2019
Date of Publication of Reasons: 17 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDER:

Date of Order: 28 November 2019

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to two counts of using electronic communication to procure a child under 16 and one count of grooming a child under 16 and was convicted and sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count – where the sentences of imprisonment were suspended, after the applicant had served four months in custody, for an operational period of three years – where the applicant contended that exceptional circumstances existed to justify the imposing of a non-custodial sentence and, further, that imposing the sentence of actual imprisonment making the applicant a reportable offender was manifestly excessive – where the applicant contended the trial judge failed to properly exercise the sentencing discretion by inference to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), when considering the question of exceptional circumstances – whether the sentence was manifestly excessive

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(6), s 152

COUNSEL:

B J Peters (sol) for the applicant
D Balic for the respondent

SOLICITORS:

Brisbane Criminal Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with Boddice J.
FRASER JA: I agree with the reasons for judgment of Boddice J.
BODDICE J: On 4 October 2019, Callum Lloyd Mellor entered pleas of guilty to two counts of using electronic communication to procure a child under 16 and one count of grooming a child under 16. He was convicted and sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count. The sentences of imprisonment were suspended, after the applicant had served four months in custody, for an operational period of three years.
The applicant sought leave to appeal those sentences. The grounds of appeal, should leave be granted, were:
“1.Exceptional circumstances did exist, when taken as a whole, which would justify the imposing of a non-custodial sentence.
2.There was a failure to properly exercise the sentencing discretion by inference to the Child Protection (Offender Reporting and Offender Prohibition Order) Act2004 (Qld), when considering the question…

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 Mellor

Details

AGLC: R v Mellor [2019] QCA 298
Case: [2019] QCA 298
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case of R v Mellor involved an appeal against sentence by the applicant, who had entered pleas of guilty to charges of using electronic communication to procure a child under 16 and grooming a child under 16. The applicant was sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count, with the sentences suspended after the applicant had served four months in custody for a period of three years. The applicant contended that the sentence was manifestly excessive, that exceptional circumstances existed to justify a non-custodial sentence, and that the trial judge failed to properly exercise the sentencing discretion by taking into account the impact of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).

The court had to determine whether the sentence was manifestly excessive and whether the trial judge had failed to properly exercise the sentencing discretion. The court held that the applicant's offending conduct, including the predatory and persistent nature of the offences, the age disparity between the applicant and the complainant, and the position of trust occupied by the applicant, warranted a sentence of imprisonment. The court also held that the failure to have regard to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) did not constitute an error in the exercise of the sentencing discretion.

The court concluded that the applicant's offending, even in the context of the mitigating factors, did not establish exceptional circumstances. The court found that the sentence did not evidence a misapplication of principle or was plainly unjust. Therefore, the application for leave to appeal against sentence was dismissed. The court held that the applicant became a reportable offender regardless of whether he was ordered to serve any of the periods of imprisonment in actual custody. The court found that the mere fact that the applicant became a reportable offender did not render a sentence of actual imprisonment manifestly excessive. The court held that the sentencing discretion was properly exercised and that the sentence was in accordance with proper sentencing principles.

Orders

Orders of the court

Date of Order: 28 November 2019

The application for leave to appeal against sentence is dismissed.

Background

Background to the litigation

These are my reasons for joining in that order.Background The applicant was born on 7 March 1998. He was aged 20 years at the time of the commission of the offences. He was aged 21 at the date of sentence. The applicant had a criminal history. It contained one offence of contravention of a domestic violence order, committed on 16 December 2017, for which the applicant had been sentenced, on 8 January 2018, to probation for 12 months with no conviction recorded, and a subsequent offence of contravention of a domestic violence order (aggravated offence), committed on 19 April 2018, for which the applicant had been sentenced, on 14 May 2018, to probation for two years. A conviction was recorded for that offence.Offences The offences all related to one male complainant, who was aged 13 to 14 years at the time of the offences. The applicant met the complainant as a consequence of the applicant being a trainer at the complainant’s football club. The first offence of using electronic communications to procure a child under 16 was committed on a date unknown between 30 April 2018 and 1 June 2018. It involved communications initiated by the applicant. Over a number of days, innocent communications between them changed to communications with sexual content. Those communications included questions by the applicant as to the complainant’s sexuality and whether he was attracted to males. The applicant attempted to have the complainant meet with him. The applicant spoke about his prowess in performing oral sex. He told the complainant of previous sexual encounters. Ultimately, the applicant propositioned the complainant to try sexual acts. The complainant did not respond to those requests. The remaining counts were committed on a date unknown between 31 July 2018 and 1 September 2018. The applicant initiated contact afresh with the complainant. Initially, the communications were about football. Within a short period of time, the communications turned to sexual matters. The communications included the expression of a desire by the applicant to meet with the complainant. The applicant offered money as an incentive. He expressed his sexual desire towards the complainant. On one occasion, he attempted to telephone the complainant. On five occasions, he asked the complainant to send him photographs of his penis. The complainant refused and the applicant again offered money. The complainant’s continued refusals did not cause the applicant to desist. The applicant sent the complainant a photograph of his own erect penis. In subsequent conversations, the applicant told the complainant the things he would do to the complainant would be “rough” and that he would “be begging him to stop”.Sentencing hearing At the sentencing hearing, the Crown relied upon a victim impact statement in which the complainant described the applicant’s conduct as having caused him to become a completely different person. He was scared because he had trusted the applicant. The complainant felt he could not trust anyone.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons outlined above, a failure to have regard to that Act did not constitute an error in the exercise of the sentencing discretion. In any event, the effect of the legislative provisions, which apply generally to offenders, is unlikely, by itself, to support a finding of exceptional circumstances within the meaning of s 9(6) of the Penalties and Sentences Act 1992 (Qld).Conclusion A consideration of the applicant’s offending, even in the context of the mitigating factors, such as his relative youth, his pleas of guilty and the other extenuating circumstances, including his prospects of rehabilitation, supports a conclusion that a finding that exceptional circumstances did not exist was in accordance with proper sentencing principles. There is no basis to conclude that the exercise of the sentencing discretion miscarried in any material way. There is also no basis to conclude that a sentence, which required the applicant to serve a term of actual imprisonment, was manifestly excessive. Such a sentence does not evidence a misapplication of principle. It is also not plainly unjust. Accordingly, the application for leave to appeal against sentence was dismissed.

Ratio Decidendi

Legal Principle Established

The respondent further submits that both the Crown and the defence accepted a period of imprisonment was warranted, with the consequence that the applicant became a reportable sexual offender, whether or not he was required to serve an actual term of imprisonment. Accordingly, even if there is established an error, a re-exercising of the sentencing discretion would result in similar sentence.Consideration At the sentence hearing, there was no submission either by the Crown or defence that the applicant’s offending did not warrant the imposition of a sentence of imprisonment. Such a proposition was plainly in accord with proper sentencing principles, having regard to the predatory and persistent nature of the applicant’s offending conduct, the relative age disparity between the complainant and the applicant, and the position of trust occupied by the applicant in respect of members of the football club, of which the complainant was one. The imposition of a sentence of imprisonment meant the sentencing Court had to record convictions in respect of each of those offences.[1] The recording of those convictions was not affected by whether the applicant was ordered to serve any of those periods of imprisonment in actual custody.[1]Penalties and Sentences Act 1992 (Qld), s 152. Once it is understood that convictions had to be recorded, regardless of the sentencing Judge’s determination as to whether there existed exceptional circumstances warranting an order for the applicant’s immediate release from custody, be it on parole or pursuant to a suspended sentence, there arises no issue as to the sentencing Court having to specifically consider the effects of the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). By reason of the definition of a reportable offender in s 5 of that Act, the applicant was a reportable offender. He was convicted of a prescribed offence; a conviction was recorded under the Penalties and Sentences Act 1992 (Qld); the applicant was sentenced for more than one prescribed offence; and the sentence included a term of imprisonment. This conclusion means there is no substance in the second proposed ground of appeal. There is also no basis to conclude that the mere fact the applicant became a reportable offender rendered a sentence of actual imprisonment manifestly excessive, as contended in proposed ground three. As to the remaining proposed ground, the sole basis for a contention that there was an error in the exercise of the sentencing discretion, by reason of the finding that exceptional circumstances did not exist, was that the sentencing Judge had not had regard to the impact of the sentence of actual imprisonment, due to the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). For the reasons outlined above, a failure to have regard to that Act did not constitute an error in the exercise of the sentencing discretion. In any event, the effect of the legislative provisions, which apply generally to offenders, is unlikely, by itself, to support a finding of exceptional circumstances within the meaning of s 9(6) of the Penalties and Sentences Act 1992 (Qld).Conclusion

CITATION:	R v Mellor [2019] QCA 298
PARTIES:	R v MELLOR, Callum Lloyd (applicant)
FILE NO/S:	CA No 273 of 2019 DC No 1906 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 4 October 2019 (Koppenol DCJ)
DELIVERED ON:	Date of Order: 28 November 2019 Date of Publication of Reasons: 17 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2019
JUDGES:	Sofronoff P and Fraser JA and Boddice J
ORDER:	Date of Order: 28 November 2019 The application for leave to appeal against sentence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to two counts of using electronic communication to procure a child under 16 and one count of grooming a child under 16 and was convicted and sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count – where the sentences of imprisonment were suspended, after the applicant had served four months in custody, for an operational period of three years – where the applicant contended that exceptional circumstances existed to justify the imposing of a non-custodial sentence and, further, that imposing the sentence of actual imprisonment making the applicant a reportable offender was manifestly excessive – where the applicant contended the trial judge failed to properly exercise the sentencing discretion by inference to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), when considering the question of exceptional circumstances – whether the sentence was manifestly excessive Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(6), s 152
COUNSEL:	B J Peters (sol) for the applicant D Balic for the respondent
SOLICITORS:	Brisbane Criminal Law for the applicant Director of Public Prosecutions (Queensland) for the respondent