R v Rodgers - [2021] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rodgers [2021] QCA 97

PARTIES:

R
v
RODGERS, Ezra Keith
(applicant)

FILE NO/S:

CA No 32 of 2020
DC No 571 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 30 January 2020 (Fantin DCJ)

DELIVERED ON:

11 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2020

JUDGES:

Morrison and McMurdo JJA and North J

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the sentence imposed for this offence on 30 January 2020.

4.   Order that no conviction be recorded for the offence and that the applicant not be further punished for it.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to one count of possession of child exploitation material –where the applicant was sentenced to a 12 month suspended sentence, had a conviction recorded and became subject to the requirements of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the sentencing judge could be satisfied that there was some particular purpose for the applicant to be subject to the requirements of the Act – 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)(d)

R v Bunton[2019] QCA 214, considered

COUNSEL:

J J Sheridan for the applicant
A Nikolic for the respondent

SOLICITORS:

Hartley Whitla Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the orders his Honour proposes.
McMURDO JA: The applicant was convicted, on his plea of guilty, of an offence of the possession of child exploitation material, which was committed in February 2019 when he was 39 years of age. By that offence, he breached a suspended period of imprisonment which had been imposed in the Magistrates Court in May 2017, for offences of public nuisance and the obstruction of police. No further action was taken in respect of that breach. For the subject offence, he was sentenced to a wholly suspended term of imprisonment of 12 months, with an operational period of 12 months.
Because of that sentence of imprisonment, a conviction had to be recorded.[1] Because a conviction was recorded, the applicant became subject to the onerous requirements of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“the Reporting Act”).
[1]Penalties and Sentences Act 1992 (Qld), s 152.
The judge described this offence as being at a “relatively low level”. On his mobile phone, there were four images (two of which were electronic copies of the same image). One image was in category four and the others in category one, in the accepted categorisation of material in this context. The judge accepted that…

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 Rodgers

Details

AGLC: R v Rodgers [2021] QCA 97
Case: [2021] QCA 97
Decision Date: 11 May 2021

CaseChat Overview and Summary

The applicant, Rodgers, appealed against both his sentence and conviction for possessing child exploitation material. The trial judge had sentenced Rodgers to a 12-month suspended sentence, recorded a conviction, and made him subject to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). Rodgers argued that the sentencing judge could not be satisfied that there was some particular purpose for him to be subject to the requirements of the Act, and that the sentence was manifestly excessive.

Rodgers' appeal raised two primary issues. The first was whether the sentencing judge could be satisfied that there was some particular purpose for Rodgers to be subject to the requirements of the Child Protection Act. The second issue was whether the sentence was manifestly excessive. The court was required to determine whether the sentencing judge's decision to impose the sentence and the associated requirements of the Act was legally sound and proportionate to the offence committed.

The appeal court found that the sentencing judge was not satisfied that there was a particular purpose for Rodgers to be subject to the requirements of the Child Protection Act. The court held that this was a critical error in the sentencing process. Furthermore, the court found that the sentence was manifestly excessive. The court considered the nature of the offence, Rodgers' background, and the impact of the sentence on him, concluding that the sentence did not reflect an appropriate balance between the need for punishment, deterrence, and rehabilitation. As a result, the appeal was allowed, the sentence was set aside, and no conviction was recorded for the offence.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Set aside the sentence imposed for this offence on 30 January 2020.

4. Order that no conviction be recorded for the offence and that the applicant not be further punished for it.

Background

Background to the litigation

Full text does not contain this section.

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 Rodgers [2021] QCA 97
PARTIES:	R v RODGERS, Ezra Keith (applicant)
FILE NO/S:	CA No 32 of 2020 DC No 571 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 30 January 2020 (Fantin DCJ)
DELIVERED ON:	11 May 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2020
JUDGES:	Morrison and McMurdo JJA and North J
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside the sentence imposed for this offence on 30 January 2020. 4. Order that no conviction be recorded for the offence and that the applicant not be further punished for it.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to one count of possession of child exploitation material –where the applicant was sentenced to a 12 month suspended sentence, had a conviction recorded and became subject to the requirements of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the sentencing judge could be satisfied that there was some particular purpose for the applicant to be subject to the requirements of the Act – 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)(d) R v Bunton[2019] QCA 214, considered
COUNSEL:	J J Sheridan for the applicant A Nikolic for the respondent
SOLICITORS:	Hartley Whitla Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent