R v OAB - [2024] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v OAB [2024] QCA 51

PARTIES:

R
v
OAB
(applicant)

FILE NO/S:

CA No 143 of 2023
DC No 1990 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 25 July 2023 (McDonnell DCJ)

DELIVERED ON:

5 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2024

JUDGES:

Morrison JA and Fraser AJA and Kelly J

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Set aside the sentence and orders made in the District Court and instead make the following orders:

a. Upon the applicant’s legal representative undertaking to the Court that the explanation required by s 95 of the Penalties and Sentences Act 1992 has been given to the applicant and that the applicant has agreed to the following probation order being made and has agreed to comply with that order, order pursuant to s 92(1)(a) of the Act that the applicant be released under the supervision of an authorised corrective services officer for a period of two years.

b.   The applicant is to report within two business days to an authorised corrective services officer at the Probation and Parole Office at Brisbane North.

c.   It is an additional requirement of this probation order under s 94 of the Act that the applicant must:

i.    submit to ongoing psychiatric treatment with a qualified psychiatrist and comply with any treatment recommended by the psychiatrist; and

ii.     submit to ongoing psychological treatment with a qualified psychologist and comply with any treatment recommended by the psychologist.

d.   A conviction not be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to knowingly possessing child exploitation material – where the sentencing judge found that there were exceptional circumstances which meant the applicant was not required to serve an actual term of imprisonment, and instead sentenced him to him to a wholly suspended term of six months’ imprisonment with a conviction recorded – where the relevant child exploitation material was of a less serious nature compared to similar cases – where the applicant was mature, had no prior criminal history, and had provided care and support for members of his family with medical conditions – where the applicant was diagnosed with mental health disorders, including ADHD and a major depressive disorder – where, at the time of the offending, the applicant’s mental health had deteriorated due to chronic life stressors – where the applicant held concerns for his current employment and future prospects of employment if a conviction was recorded – whether the sentencing judge erred in not moderating general deterrence and recording a conviction

Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(7), s 12(2)

R v Jones[2011] QCA 147, distinguished
R v Sperling[2021] QCA 40, applied
R v Tyrrell[2022] QCA 157, distinguished
R v Verburgt[2009]…

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 OAB

Details

AGLC: R v Oab [2024] QCA 51
Case: [2024] QCA 51
Decision Date: 5 April 2024

CaseChat Overview and Summary

The applicant in this case pleaded guilty to possessing child exploitation material. The sentencing judge determined that exceptional circumstances existed, allowing the applicant to receive a wholly suspended sentence of six months' imprisonment with a conviction recorded. The applicant appealed the sentence, arguing that the sentencing judge failed to adequately moderate general deterrence and should not have recorded a conviction.

The legal issues before the court included whether the sentencing judge erred in imposing a wholly suspended sentence with a conviction recorded, given the less serious nature of the material involved, the applicant's lack of a criminal history, his family responsibilities, and his mental health conditions. The court was also tasked with determining whether the sentencing judge's decision adequately balanced the need for general deterrence with the exceptional circumstances of the case.

The court found that the sentencing judge erred by not adequately moderating general deterrence and by recording a conviction. The court considered the less serious nature of the material, the applicant's background, and his mental health conditions at the time of the offence. The court concluded that a wholly suspended sentence with a conviction was inappropriate and that the sentence should instead be a probation order with specific conditions, including ongoing psychiatric and psychological treatment. The court also determined that a conviction should not be recorded.

The court granted the application for leave to appeal, allowed the appeal, and set aside the sentence and orders made in the District Court. The court ordered that the applicant be released under supervision for two years, with specific requirements for psychiatric and psychological treatment. Additionally, the court ordered that no conviction be recorded.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the sentence and orders made in the District Court and instead make the following orders:

a. Upon the applicant’s legal representative undertaking to the Court that the explanation required by s 95 of the Penalties and Sentences Act 1992 has been given to the applicant and that the applicant has agreed to the following probation order being made and has agreed to comply with that order, order pursuant to s 92(1)(a) of the Act that the applicant be released under the supervision of an authorised corrective services officer for a period of two years.

b. The applicant is to report within two business days to an authorised corrective services officer at the Probation and Parole Office at Brisbane North.

c. It is an additional requirement of this probation order under s 94 of the Act that the applicant must:

i. submit to ongoing psychiatric treatment with a qualified psychiatrist and comply with any treatment recommended by the psychiatrist; and

ii. submit to ongoing psychological treatment with a qualified psychologist and comply with any treatment recommended by the psychologist.

d. A conviction not be recorded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v OAB [2024] QCA 51
PARTIES:	R v OAB (applicant)
FILE NO/S:	CA No 143 of 2023 DC No 1990 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 25 July 2023 (McDonnell DCJ)
DELIVERED ON:	5 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2024
JUDGES:	Morrison JA and Fraser AJA and Kelly J
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Set aside the sentence and orders made in the District Court and instead make the following orders: a. Upon the applicant’s legal representative undertaking to the Court that the explanation required by s 95 of the Penalties and Sentences Act 1992 has been given to the applicant and that the applicant has agreed to the following probation order being made and has agreed to comply with that order, order pursuant to s 92(1)(a) of the Act that the applicant be released under the supervision of an authorised corrective services officer for a period of two years. b. The applicant is to report within two business days to an authorised corrective services officer at the Probation and Parole Office at Brisbane North. c. It is an additional requirement of this probation order under s 94 of the Act that the applicant must: i. submit to ongoing psychiatric treatment with a qualified psychiatrist and comply with any treatment recommended by the psychiatrist; and ii. submit to ongoing psychological treatment with a qualified psychologist and comply with any treatment recommended by the psychologist. d. A conviction not be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to knowingly possessing child exploitation material – where the sentencing judge found that there were exceptional circumstances which meant the applicant was not required to serve an actual term of imprisonment, and instead sentenced him to him to a wholly suspended term of six months’ imprisonment with a conviction recorded – where the relevant child exploitation material was of a less serious nature compared to similar cases – where the applicant was mature, had no prior criminal history, and had provided care and support for members of his family with medical conditions – where the applicant was diagnosed with mental health disorders, including ADHD and a major depressive disorder – where, at the time of the offending, the applicant’s mental health had deteriorated due to chronic life stressors – where the applicant held concerns for his current employment and future prospects of employment if a conviction was recorded – whether the sentencing judge erred in not moderating general deterrence and recording a conviction Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(7), s 12(2) R v Jones[2011] QCA 147, distinguished R v Sperling[2021] QCA 40, applied R v Tyrrell[2022] QCA 157, distinguished R v Verburgt[2009]…