R v Tbe

Case [2024] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

R v TBE [2024] QCA 204

PARTIES:

R
v
TBE
(applicant)

FILE NO/S:

CA No 157 of 2024
DC No 85 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 23 July 2024 (Burnett DCJ)

DELIVERED ON:

1 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2024

JUDGES:

Flanagan and Boddice JJA and Kelly J

ORDERS:

1.   The application for leave to adduce evidence filed 12 August 2024 is dismissed.

2.   The application for leave to appeal against sentence filed 24 July 2024 is dismissed.

3. The Registrar is directed to amend the verdict and judgment record to include the conditions mandated by ss 20(1B)(c) and (d) of the Crimes Act 1914 (Cth) namely that the applicant not travel interstate or overseas without the written permission of the probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of using a carriage service to groom a person under 16 years of age – where s 20(1)(b) of the Crimes Act 1914 (Cth) applied – where the sentencing judge was not satisfied that there existed exceptional circumstances pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) and sentenced the applicant to a term of imprisonment of 21 months to be released from custody after he had served four months – where the applicant contended that the sentencing judge erred in finding that exceptional circumstances did not exist – whether exceptional circumstances existed – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 3, s 17A, s 20
Criminal Code Act 1995 (Cth), s 474.27(1)

R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, cited
R v Bredal [2024] NSWCCA 75, cited
R v Kelly (Edward) [2000] QB 198; [1999] 2 All ER 13, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied
R v Nahlous (2013) 273 FLR 232; [2013] NSWCCA 90, distinguished
R v Quick; ex parte Attorney General (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, applied
R v Ralston (2020) 285 A Crim R 159; [2020] ACTCA 47, cited
R v Tootell; Ex parte Attorney-General (Qld)[2012] QCA 273, cited

COUNSEL:

M L Longhurst for the applicant
S J Cartledge for the respondent

SOLICITORS:

TWC Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

  1. FLANAGAN JA:  I agree with Kelly J.

  2. BODDICE JA:  I agree with the reasons for judgment of Kelly J and the orders proposed by his Honour.

  3. KELLY J: On 23 July 2024, the applicant pleaded guilty to one count of using a carriage service to groom a person under 16 years of age, an offence under s 474.27(1)…

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Details
AGLC
R v Tbe [2024] QCA 204
Case
[2024] QCA 204
Decision Date

CaseChat Overview and Summary

The case of R v Tbe involved the applicant, who pleaded guilty to using a carriage service to groom a person under 16 years of age, a charge under s 20(1)(b) of the Crimes Act 1914 (Cth). The sentencing judge sentenced the applicant to a term of imprisonment of 21 months, with release after serving four months. The applicant appealed against the sentence, arguing that the sentencing judge erred in finding that exceptional circumstances did not exist and that the sentence was manifestly excessive.

The legal issues before the court were whether exceptional circumstances existed to warrant the applicant's immediate release and whether the sentence imposed was manifestly excessive. The court needed to determine if the sentencing judge had properly considered all relevant factors in imposing the sentence and if the sentence was within the bounds of reasonableness.

The court considered the applicant's early plea, high degree of cooperation, efforts made at rehabilitation, personal antecedents, and the facts of the case. The court found that the applicant had exploited his position of age and sophistication to groom the complainant, which was not a spontaneous act. Although the applicant's cooperation and rehabilitation efforts were commendable, the court was not satisfied that exceptional circumstances existed to warrant immediate release. The court found that the sentence was not manifestly excessive and was within the bounds of reasonableness.

The orders of the court were that the application for leave to adduce evidence was dismissed, the application for leave to appeal against sentence was dismissed, and the Registrar was directed to amend the verdict and judgment record to include the conditions mandated by ss 20(1B)(c) and (d) of the Crimes Act 1914 (Cth).

Orders

Orders of the court

1. The application for leave to adduce evidence filed 12 August 2024 is dismissed.

2. The application for leave to appeal against sentence filed 24 July 2024 is dismissed.

3. The Registrar is directed to amend the verdict and judgment record to include the conditions mandated by ss 20(1B)(c) and (d) of the Crimes Act 1914 (Cth) namely that the applicant not travel interstate or overseas without the written permission of the probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The remarks correctly identified the real issue and dealt with that issue as follows:[16]“…[T]he real issue in this case is whether or not the Defence can demonstrate there are exceptional circumstances thereby warranting your immediate release. The factors pointed to by the Defence include your early plea, a high degree of cooperation. Efforts made at rehabilitation. Your personal antecedents and the facts of this case. In particular, so far as the facts of this case, it is contended that this is regarded as something atypical … Nonetheless, other factors that are pointed to are that the offending here did involve knowledge of you of the complainant, even though the grooming took place some time after you had developed an association and relationship with the complainant. The grooming itself, in my view, did not simply come out of the blue. You no doubt exploited your position of age and relative sophistication in your position as a member of this gel club to – as I have said, inveigle yourself into his confidence and abuse that position, having regard to his age at the time. … The Defence, as I have said, goes through the various factors, including your guilty plea, contrition, cooperation, the risk of deportation, and submits that exceptional circumstances have been demonstrated … and accordingly there should be no actual period of custody. I am not satisfied that the exceptional circumstances have been established in this case and it follows that there must be a period of actual custody.”[16]ARB, p 42 at line 06 to p 43 at line 18.An application to adduce fresh evidence Before this Court, the applicant applied for leave to adduce fresh evidence comprising two emails sent by Mr Lee to the applicant’s solicitor. The fresh evidence was explained on the basis that “the psychological material at first instance was lacking”.[17] On 9 August 2024, the applicant’s solicitor had called the receptionist of Mr Lee’s psychology practice and inquired whether “Mr Lee would be able to send … an email confirming that:a.He was aware of the charges that [the applicant] was being sentenced before the District Court at Brisbane for;b.That the charges were discussed during his sessions with [the applicant]; andc.That he provided therapy and treatment throughout his sessions to [the applicant] surrounding any attraction to children.”[18][17]Transcript, p 3 at lines 04-06.[18]Affidavit of Elizabeth Ellen Main filed 12 August 2024, [4]. Following that request, on 9 August 2024, Mr Lee provided two emails to the applicant’s solicitor. The applicant’s counsel submitted that the emails were “essentially all that could be marshalled in the short time frame”.[19] The emails were in the following terms:(a)At 11.29 am, “I have definitely talked about the reason why he was going to court. We have indeed discussed about the charge multiple times throughout our sessions”; and(b)At 1.24 pm, “[s]orry I didn’t respond sooner, I was in sessions. I can confirm that we have discussed what behaviours led us to this case with the child attraction charge. I can also confirm that we have discussed what done differently in future to prevent same problematic behaviours from happening again (sic)”.[19]Transcript, p 3 at lines 25-26.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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