R v Sperling - [2021] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sperling [2021] QCA 40

PARTIES:

R
v
SPERLING, Bradley Luke
(applicant)

FILE NO/S:

CA No 199 of 2020
DC No 2963 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 21 September 2020 (Loury QC DCJ)

DELIVERED EX TEMPORE ON:

9 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2021

JUDGES:

Fraser and Mullins JJA and Rafter AJ

ORDERS:

1. Leave to appeal is granted.

2. Appeal allowed to the extent only of setting aside the conviction recorded for count 1 and, in lieu, it is ordered that no conviction be recorded for count 1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of possessing child exploitation material (CEM) – where the applicant was fined $2,000 and a conviction was recorded – where the applicant applies for leave to appeal against his sentence in respect of the recording of the conviction – where the sentencing judge took into account the effect of the recent amendment to s 9(4) of the Penalties and Sentences Act 1992 (Qld) in respect of CEM when considering whether or not to record a conviction under s 12 of that Act – whether that was an irrelevant consideration – whether the recording of the conviction should be set aside

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5
Penalties and Sentences Act 1992 (Qld), s 9, s 12

R v Bunton[2019] QCA 214, cited
R v Koster (2012) 226 A Crim R 247; [2012] QCA 302, cited
R v ZB[2021] QCA 9, cited

COUNSEL:

J R Jones with N D Boyd for the applicant
J O’Brien for the respondent

SOLICITORS:

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

MULLINS JA: The applicant pleaded guilty to possessing child exploitation material (CEM) (count 1) and possessing a dangerous drug (cannabis) (count 2) on 21 September 2020. For count 1, he was fined $2,000 and a conviction was recorded. For count 2, he was convicted and not further punished, but no conviction was recorded.
The applicant applies for leave to appeal against the sentence on two grounds. The first is that the learned sentencing judge erred by taking into account an irrelevant consideration that on 14 September 2020 s 9(4) of the Penalties and Sentences Act 1992 (Qld) (the Act) was amended (the amendment) with retrospective effect. The second ground for the application is that, in the circumstances, the decision to record a conviction, for count 1 was manifestly excessive.
The applicant’s antecedents
The applicant was 35 years old and married at the time of the offending. He had no prior criminal history. He was able to provide the court with impressive character references and an excellent work history, including in his own business as a franchisee,…

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 Sperling

Details

AGLC: R v Sperling [2021] QCA 40
Case: [2021] QCA 40
Decision Date: 9 March 2021

CaseChat Overview and Summary

The case of R v Sperling involved an individual who pleaded guilty to one count of possessing child exploitation material. The defendant was fined $2,000 and a conviction was recorded. Dissatisfied with the latter aspect of his sentence, the defendant sought leave to appeal against the recording of the conviction. The appeal was lodged with the Queensland Court of Appeal.

The central legal issue before the court was whether the sentencing judge had erred in considering the impact of a recent amendment to section 9(4) of the Penalties and Sentences Act 1992 (Qld) when deciding whether or not to record a conviction under section 12 of the same Act. The defendant argued that this consideration was irrelevant and that the conviction should not have been recorded. The court had to determine whether the sentencing judge's approach was legally sound and whether the recording of the conviction should be set aside.

The court concluded that the sentencing judge had indeed erred in taking into account the effect of the amendment to section 9(4) when deciding whether to record a conviction under section 12. The court held that this was an irrelevant consideration and, as a result, the conviction recorded for count 1 should be set aside. Consequently, the appeal was allowed to the extent of setting aside the conviction, and it was ordered that no conviction be recorded for count 1.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Appeal allowed to the extent only of setting aside the conviction recorded for count 1 and, in lieu, it is ordered that no conviction be recorded for count 1.

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 Sperling [2021] QCA 40
PARTIES:	R v SPERLING, Bradley Luke (applicant)
FILE NO/S:	CA No 199 of 2020 DC No 2963 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 21 September 2020 (Loury QC DCJ)
DELIVERED EX TEMPORE ON:	9 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2021
JUDGES:	Fraser and Mullins JJA and Rafter AJ
ORDERS:	1. Leave to appeal is granted. 2. Appeal allowed to the extent only of setting aside the conviction recorded for count 1 and, in lieu, it is ordered that no conviction be recorded for count 1.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of possessing child exploitation material (CEM) – where the applicant was fined $2,000 and a conviction was recorded – where the applicant applies for leave to appeal against his sentence in respect of the recording of the conviction – where the sentencing judge took into account the effect of the recent amendment to s 9(4) of the Penalties and Sentences Act 1992 (Qld) in respect of CEM when considering whether or not to record a conviction under s 12 of that Act – whether that was an irrelevant consideration – whether the recording of the conviction should be set aside Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5 Penalties and Sentences Act 1992 (Qld), s 9, s 12 R v Bunton[2019] QCA 214, cited R v Koster (2012) 226 A Crim R 247; [2012] QCA 302, cited R v ZB[2021] QCA 9, cited
COUNSEL:	J R Jones with N D Boyd for the applicant J O’Brien for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent